Winnemucca Water and Light Company v. Model Gas Enging Works
| Decision Date | 27 May 1913 |
| Docket Number | 22,118 |
| Citation | 101 N.E. 1007,179 Ind. 542 |
| Parties | Winnemucca Water and Light Company v. Model Gas Enging Works |
| Court | Indiana Supreme Court |
From Miami Circuit Court; J. M. Tillett, Judge.
Action by the Winnemucca Water and Light Company against the Model Gas Engine Works. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)
Affirmed.
W. E Mowbray, for appellant.
Antrim & McClintic, for appellee.
Appellant instituted this action against appellee by a complaint in one paragraph, to recover part of the purchase price paid on a contract of sale of an engine by appellee to appellant, and for damages for alleged breach of guaranty contained in the contract, a copy of which is incorporated in the complaint by way of exhibit. A demurrer to the complaint for want of facts sufficient to constitute a cause of action was overruled. Appellee answered in general denial, and a second paragraph by way of counterclaim, asking judgment for the balance of the purchase price of the engine. Appellant's demurrer to the counterclaim for want of facts sufficient to constitute a defense or cause of action was overruled. Appellant's reply to appellee's counterclaim was in general denial and a second paragraph setting up appellee's knowledge of the place where, and the purposes for which the engine was purchased, the guaranty contained in the contract, the failure of the engine to do the work, the breach of guaranty, and the total failure of consideration of the purchase price, seeking recovery of the money paid, and special damages alleged. Appellee's demurrer to this reply, for want of facts sufficient to avoid appellee's second paragraph of answer, or to constitute a defense to its counterclaim was overruled. A trial by jury resulted in a verdict for the defendant on the complaint with no finding as to the counterclaim, and over motion for a new trial judgment was rendered for the defendant with costs.
The error here assigned and not waived is on overruling appellant's motion for a new trial. The contract in controversy arises over a proposition in writing dated September 8, 1906, to furnish "E. Reinhart & Co.", to be shipped to Winnemucca, Nevada, Model Gasoline, Distillate, Alcohol Engine, Style C", and setting out the specifications of the engine, among which are, "Horse Power developed at 275 R.P.M. 150 actual H. P." and the following guaranty: This proposal was followed by a written acceptance, September 18, 1906, by "E. Reinhart Inc. by M. Reinhart Secy."
It appears by the evidence that E. Reinhart was secretary and treasurer of appellant corporation, and its agent in receiving and accepting the proposal. The contract price was increased $ 190 after the contract was executed, for extras. The evidence is that $ 2590 not including freight, was paid before the engine was shipped and the freight was $ 477.60, and appellee furnished the erectors, and that the engine as set up in Winnemucca could not be made to develop and sustain more than from 63 to 70 horse power from one-half to two-thirds of the time, 98 to 99 horse power a portion of the time, and at one time ran to 127 horse power for a few minutes, but the bearings then heated badly, and that it developed 170 horse power at Peru; that when the contract was made it was understood between the parties that the engine was to be used in Winnemucca, Nevada. There is evidence that there is a loss of transmission or efficiency of about 40 per cent of the rated horse power of gasoline engines from the friction of belting, gearings, bearings, inefficiency of the generators, idlers, and altitude, and in this case the loss of power was increased from the weight of an idle generator on the shaft, an attached waterwheel, and a defective clutch. The loss of power at the altitude of Winnemucca is given as about 11 horse power, which however may be overcome by a device applicable to that purpose.
The claim of appellant is, that 150 horse power working efficiency was guaranteed, while the claim of appellee is, that the rated and guaranteed horse power was subject to the deductions of loss of horse power from friction, and that it is so understood in the trade. The tests at Winnemucca were made by and upon Ampmetres, while the evidence fairly shows that the only reliable test is a brake test. No claim is made of an implied warranty, so the cause stands upon the construction of the written contract. Reeves v. Byers (1900), 155 Ind. 535, 58 N.E. 713; Conant v. National State Bank (1889), 121 Ind. 323, 326, 22 N.E. 250, and cases cited; Sullivan Mach. Co. v. Breeden (1907), 40 Ind.App. 631, 637, 82 N.E. 107.
Upon this state of the record the court was requested by appellant to charge the jury that in case there was any uncertainty as to the place where the engine was to develop the full rated horse power, and the proposal might be given two different constructions, if prepared by the seller, it is to be construed most strongly against him, and is to be given that construction most favorable to the acceptor. An instruction was requested, and refused, on the theory of implied warranty of adaptability to the use to which it was known the engine was to be put, at the place where it was to be used. The latter instruction was clearly erroneous for the reason that as appellant counts upon an express warranty of horse power, without any reference to adaptability, an implied warranty can not arise. The court instructed the jury that the warranty is express, and the right of recovery limited to the alleged breach as to the capacity of the engine; that it was the duty of the court to construe the contract, and that there being an express warranty, no implied warranty arises, and that under this contract if the engine had the capacity to develop 150 horse power, at 275 revolutions per minute, without connection with shafts, belting or other machinery, its full warranted capacity had been fulfilled, and that there is no implication of warranty that it would furnish power to operate appellant's plant.
Exceptions to the refusal to give, and to the giving of these instructions present the questions relied on. It is not to be doubted that a contract must be construed in all its parts and that in case of a contract prepared by a manufacturer of machinery, so worded as to convey a doubtful meaning, or to be capable of two meanings, that construction should be adopted which will operate most strongly against him, and in the sense in which he has reason to suppose it is understood by the vendee, when to give it another construction will result in deceit, or injustice, or defeat the...
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Winnemucca Water & Light Co. v. Model Gas Engine Works
... ... Appeal from Circuit Court, Miami County; J. M. Tillett, Judge.Action by the Winnemucca Water & Light Company against the Model Gas Engine Works. Judgment for defendant, and plaintiff appeals. Affirmed.Transferred from the Appellate Court under section 1405, ... ...