William Wurdack Electric Mfg. Co. v. Elliott & Barry E. Co.

• Decision Date: 07 January 1919
• Docket Number: No. 15291.,15291.
• Citation: 207 S.W. 877
• Parties: WILLIAM WURDACK ELECTRIC MFG. CO. v. ELLIOTT & BARRY ENGINEERING CO.
• Court: Missouri Court of Appeals

207 S.W. 877

WILLIAM WURDACK ELECTRIC MFG. CO. v. ELLIOTT & BARRY ENGINEERING CO.

No. 15291.

St. Louis Court of Appeals. Missouri.

Argued and Submitted December 3, 1918.

Opinion Filed January 7, 1919.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

"Not to be officially published."

Action by the William Wurdack Electric Manufacturing Company against the Elliott & Barry Engineering Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. S. Campbell, of St. Louis, for appellant.

H. Chouteau Dyer, of St. Louis, for respondent.

REYNOLDS, P. J.

A contract between plaintiff and defendant was evidenced by the following writing, signed by defendant, addressed to plaintiff:

"Enter our order and deliver to the Albany Hotel Building, Page Ave., this city—at the earliest possible date, one #S-36-11 Bosley Boiler ¢50/10. Please acknowledge."

This is dated at St. Louis, August 27th, 1909, and was accepted by the plaintiff, who delivered the boiler, as it is claimed, of the kind specified.

The explanation of the letters and figures in this order is that "#S-36-11" indicated that the boiler was to be for steam, the "36" that it was to be 36 inches in diameter, and the "11" that it was to contain eleven sections; the figures "¢50/10 referred to discount on payment within ten days.

The petition, setting up that defendant had ordered of plaintiff, and that plaintiff had sold and delivered to defendant, the boiler described, averred that defendant agreed to pay for it the sum of $658.80. Averring demand of payment on June 21st, 1910, and frequently since that date, and refusal of defendant to pay, plaintiff brings its suit for the amount, with interest and costs.

The answer, admitting the incorporation of the defendant, denies all the other allegations in the petition. It then avers that on August 27th, 1908, defendant had a contract with Mr. Ulch, owner of the building, to install a heating boiler in the building, a hotel, located at 4873 Page Avenue, St. Louis; that plaintiff sent its representative to inspect the hotel building for the purpose of ascertaining the size and kind of boiler to be installed, and this representative advised that the S-36-11 Bosley Boiler was of the proper size for heating the building, and advised the installing of the boiler, and warranted and represented that it would heat the hotel building to a temperature of 70 degrees when the thermometer outside was at or below zero. Averring that the boiler which plaintiff delivered was placed in the hotel building, it is charged: That it failed to heat the rooms of the building to a temperature of 70 degrees, and that it could not be made to heat the moms to that temperature, and that it failed to perform the services which plaintiff warranted and represented that it would do. That after it was placed in the building, and it was found that it would not heat the building properly and to the temperature that the plaintiff warranted and represented that the boiler would do, defendant notified plaintiff of the failure of the boiler to perform the work which plaintiff had represented it would do, and plaintiff attempted to make it heat the building to a proper temperature, but failed to make the boiler do that work. That by reason of its failure the proprietor removed the boiler, placed it in an alley adjoining the building, and defendant notified plaintiff that by reason of the failure of the boiler to do the work which it so warranted and represented it would do, it had been removed from the building in which it was placed, and defendant had notified plaintiff to take charge of the boiler as its property, which plaintiff refused to do. That in order to protect it, defendant placed the boiler in storage, subject to plaintiff's order, and it has remained in storage ever since, subject to plaintiff's order. That by reason of the failure of the boiler to do the work of heating, which plaintiff warranted and represented that the boiler would do, that the boiler was of no value to defendant and is still held in storage subject to plaintiff's order.

A general denial was interposed by way of reply to this.

The cause was tried before the court to a jury, and resulted in a verdict of $732.48 in favor of plaintiff, judgment following. Interposing a motion for new trial, which was overruled, defendant has duly appealed. The assignments of error made by appellant and argued before us, are in refusing to allow the witness Ulch to testify to admissions, representations and statements made to him by one Bosley, a representative of plaintiff; in refusing to allow defendant, on cross-examination, to interrogate the president of the company, then on the stand as witness for plaintiff, as to his conversation with Ulch, the owner of the hotel building.

Taking up the assignments, it appears that during the cross-examination of Mr. Ulch, a witness for defendant, counsel for defendant asked him what Bosley had said about the boiler. This was objected to by counsel for plaintiff, unless it was made in the presence of defendant. Counsel for defendant stated that he was willing to waive that right, to which counsel for plaintiff said that defendant could not waive it and that he objected, and he stood on his objection. Counsel for defendant then stated that he was "asking for statements or admissions made to this witness by the plaintiff," to which the court said that he presumed counsel was "trying to show a warranty," to which counsel for defendant said...