Wilkin Mfg. Co. v. H.M. Loud & Sons Lumber Co.

• Decision Date: 22 December 1892
• Parties: WILKIN MANUF'G CO. v. H. M. LOUD & SONS LUMBER CO.
• Court: Michigan Supreme Court

53 N.W. 1045

94 Mich. 158

WILKIN MANUF'G CO. v. H. M. LOUD & SONS LUMBER CO.

Supreme Court of Michigan

December 22, 1892

Error to circuit court, Iosco county; WILLIAM H. SIMPSON, Judge.

Action by the Wilkin Manufacturing Company against the H. M. Loud &amp Sons Lumber Company to recover money. From a judgment for plaintiff, defendant appeals. Affirmed.

Main J. Connine, for appellant.

O E. MCutcheon, (Forrest & MCutcheon, of counsel,) for appellee.

LONG J.

Plaintiff brought suit for the claimed balance due it from the defendant for certain mill machinery, amounting to $1,944.38. On the trial plaintiff had verdict and judgment for an amount considerably less than the amount claimed. Defendant brings error. Plaintiff, to make its case, on the trial produced the items of machinery furnished, and proved their value, as well as an admission of the defendant as to the indebtedness. The defendant, with its plea of the general issue, gave notice that the machinery was purchased under a special contract, by the terms of which the plaintiff was to manufacture and deliver to defendant two band sawmills complete with all appliances, etc., connected therewith, and to be the best made; that plaintiff was to furnish a competent man to set them up, and warranted them to be well built, according to the latest improvements, and that they would cut first-class lumber in a first-class manner to the amount of 100,000 feet per day of 20 hours; that plaintiff failed and neglected to send an experienced man to set the mills up, and that they were so unskillfully put up that they cut poor lumber, and would not cut 100,000 feet per day, did not run properly, but broke, thereby causing great delay and expense; also that the plaintiff did not send the said mills and machinery within the time agreed upon and fixed for the delivery, to the damage of defendant, which it would recoup on the trial. Defendant introduced in evidence what it claimed to be the contract of warranty. This contract, if any was made, consists of certain letters and telegrams passing between the parties, as follows:

"Milwaukee, Wis., Dec. 26th, 1888. Loud & Sons, Oscoda, Mich.-Gentlemen: We propose to furnish you with two of our right and left hand eclipse band mills, all complete, except foundation bolts and belts, equipped as follows: To be used with our heavy iron-frame foundation, with iron brackets to carry the lower shaft sawyer's lever and connections in front of or behind. Number of saws, fifteen. Gauge, ten inches wide, and forty-nine and 6/10ths feet long. Pitch of teeth, 11/4. Kind of guides to be used, roller guides. Shipping weight, approximate. Price $3,000, f. o. b. Milwaukee, Wis. We agree to furnish a competent man to adjust and start this band mill, and we fully guaranty this machine as to material, workmanship, and general performance. Very respectfully, THE WILKIN MFG. CO. By THEODORE V. WILKIN, V. P."

"Wilkin Mfg. Company, Milwaukee, Wis.-Gentlemen: We accept your proposition in full, and you will please enter our order for the band mill, etc., as specified in the above proposition, and ship said machinery addressed to us, addressed at Oscoda, state of Michigan, via the best route, on or before February 15th, 1889, for which we agree to pay you as follows: $1,500 on receipt of bill of lading, and $1,500 in four months, ------ days after receipt of machinery, provided said machinery comes up to your representations. We further agree to insure said machinery to the amount of unpaid account, loss, if any, payable to the Wilkin Mfg. Company, as their interest may appear, and policy delivered to them within ten days after receipt of said machinery. We further guaranty the above mills to be the heaviest mills made, and they will cut as much lumber, or more, and do it as perfectly, as any mill now in the market. We accept the above proposition in full. [Signed] ------."

On the margin is written, "Changed to conform to our letter."

"Oscoda Mich., Dec. 28th, '88. The Wilkin Mfg. Company, Milwaukee, Wis.-Gentlemen: We accept the terms quoted us by J. W. Brown of 5 1/4 cents per pound, finished weight, for all the mill machinery shown on blue print No. 1, a list of which we herewith inclose, the payment to be made not later than February 15th, 1889, all to be first-class stock, and finished. We also accept your offer to furnish us two band mills, one right and one left hand, as per your proposition of December 26th, including guaranty, but with roller guides. We will make payments as follows: One half the entire in four months, and one half in six months, from the time of shipment, giving note therefor, with interest at six per cent., for three months from shipment. Yours, etc., THE H. M. LOUD & SONS LUMBER CO. By H. M. LOUD, Pres."

"Milwaukee Wis., Jan. 4th, 1889. Messrs. H. M. Loud & Sons, Oscoda, Mich.-Gentlemen: As telegraphed, we write about the terms in the contract. It is not usual at the price per pound work to make terms other than cash, and at 5 1/4 cent per pound we simply make nothing on the work; besides the price of $3,000 on those band mills is about $200 lower than we ought to have received. Therefore half the entire amount in four months, and one fourth in six months, from the date of shipment, in notes bearing interest at the rate of six per cent. for three months, is too much to ask, and we hope you will grant the arrangement for payments as follows: One half at date of shipment, in four-months note, interest bearing at six per cent., first for the machinery, and second for the band mills,-that is, we can negotiate settlement for the last half the machinery exclusive of band mills separate the last half the band mills. The only material difference, we ask interest from date of shipment, which really we are entitled to, aside from the consideration of prices as...