Weeks v. Robert A. Johnston Co.

• Decision Date: 16 December 1902
• Citation: 92 N.W. 794,116 Wis. 105
• Parties: WEEKS v. ROBERT A. JOHNSTON CO.
• Court: Wisconsin Supreme Court

116 Wis. 105

92 N.W. 794

WEEKS

v.ROBERT A. JOHNSTON CO.

Supreme Court of Wisconsin.

Dec. 16, 1902.

Appeal from circuit court, Milwaukee county; J. C. Ludwig, Judge.

Action by William H. Weeks against the Robert A. Johnston Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action to recover $1,000, the purchase price of a chocolate dip machine, f. o. b. Philadelphia, and $45, the expenses of a man going to Milwaukee to set up the machine, and $40 for four special screens, reasonably worth and of the market value of $40, and interest on the total amount from April 10, 1900. The defendant answered by way of admissions, denials, and counter allegations, and set up a counterclaim to the effect that the plaintiff warranted and guarantied the machine to perform the work well for which it was intended, and be of great value and assistance to the defendant in the manufacture of confectionery, and that the machine in its work would be and prove to be entirely satisfactory to the defendant; that, relying upon such guaranty, the defendant agreed to test the machine in its business, and did thereafter thoroughly try and test the machine in the manner, way, and form as directed by the plaintiff, and in so doing destroyed and rendered worthless material of the value of $114.04; that such test proved the machine to be, and it was, utterly worthless and of no value, and demanded judgment for the $114.04, besides the costs and disbursements of this action. The counterclaim was put in issue by a reply. At the close of the trial a verdict was directed in favor of the defendant. From the judgment entered thereon dismissing the action upon the merits, and for $35.52 costs, the plaintiff brings this appeal. The written order for the machine is as follows: “Order Blank For Labor Saving Confectionery Machines. By John Werner. Rochester, N. Y., U. S. A. Terms, net 30 days. Goods shipped at buyer's risk. Date, November 24, 1899. Ship to Robert A. Johnston Co., Milwaukee, Wis. Number of Articles. Description of Goods. One chocolate dip machine, f. o. b. Philadelphia. Price, $1,000. Capacity, 1,000 to 3,000 lbs. a day, and exclusive right to use it in Milwaukee for one year, R. A. Johnston Co. to pay R. R. fare for man to put up machine, if machine accepted; otherwise machine returned f. o. b. Milwaukee, Wis. Entire satisfaction guarantied. J. W. Werner.” (On side of sheet in print:) “All claims for deficiencies must be made within 15 days after receipt of goods.” To that order the plaintiff wrote the defendant under date of November 28, 1899: “We are in receipt of an order to our Mr. Werner for a chocolate dipping machine, and before shipping same would like your confirmation. We don't like the term ‘entire satisfaction.’ It is very broad, although we have confidence that we can give you all we claim, and more. We cannot afford to take big chances, as the machine weighs over a ton. We will refer you to” several persons therein named. The defendant replied under date of December 1, 1899: “We do not quite understand what you mean by wanting our confirmation of the order for machinery. We had a perfect understanding with Mr. Werner when he was here, and he seemed to be a very honest and honorable gentleman. When the machinery arrives and is thoroughly tested, and if it proves as represented, we will be pleased to keep it, and pay for it, and I have no doubt that Mr. Werner was well satisfied that he was doing business with honorable people when he did business with us. We always try to buy the very best thing there is on the market in machinery, and, if Mr. Werner did not make us believe that what you had was the best, he probably would not have left with our conditional order. We will forward to you to-day by mail the molds, as requested, and will write you at the same time what particulars may be necessary.” December 13, 1899, the defendant wrote the plaintiff: “For the present we only wish to make the drop same as sample sent you, but, as we wish to run this machine to its capacity, you had better make us four extra screens. If the machine works as represented, we will want other designs, but for the present, in order to get started, we prefer this one mold only.” December 14, 1899, the defendant wrote the plaintiff: “We have decided to have you make the four extra screens ordered,--one each as per sample we are sending you under separate cover.” January 13, 1900, the defendant informed the plaintiff that the machine had arrived at Milwaukee. The plaintiff thereupon came to Milwaukee and set up the machine, and then proceeded to test it, but failed to make it work satisfactorily to the defendant or to his own satisfaction. The plaintiff then suggested that he would send for another box to run the baskets through, and put a steam coil therein to keep the sieves warm, and the defendant's man said, “All right.” After the plaintiff left, the defendant received a postal card from him postmarked January 18, 1900, at Chicago, as follows: “I think best to have you get the brace hot box made there, and then you will have it as you wish; it will be quite a delay should I ship from home. Use the one you have for the perforated one or inside, and advise me how it worked as soon as you have it in shape. Wishing you abundant success, yours, W. H. Weeks.” The defendant had the box made and put into the machine. It was a part of the machine,--similar to the one on when the machine came,--but the machine gave but very little, if any, better success. January 23, 1900, the defendant wrote to the plaintiff: “We discovered yesterday that all of the chocolate drops we have turned out on your machine taste after paint, and it is impossible for us to send out the goods; they are a dead loss on our hands. Upon investigating your machine thoroughly, we find that what you stated to us was enamel on the inside of the machine turns out to be paint. The machine cannot be used in its present condition, and we cannot do anything with it until we hear from you. Kindly let us hear from you promptly.” The plaintiff replied under date of January 27, 1900, and, after some discussion, among other things said: “Will you kindly let us know the amount of your loss, and send us samples of the drops, as we might be able to dispose of them in Chicago or in our city. Mr. Werner, to whom we have written, tells us that he will be in your city soon, and is confident matters will be satisfactorily arranged. You can remove enamel by first taking alcohol, then turpentine, and thoroughly cleansing with a strong solution of potash. Trusting you...