Wolverine Glass Co. v. Miller

Decision Date07 January 1924
Docket Number139
Citation279 Pa. 138,123 A. 672
PartiesWolverine Glass Co. v. Miller, Appellant
CourtPennsylvania Supreme Court

Argued October 17, 1923

Appeal, No. 139, Oct. T., 1923, by defendant, from judgment of C.P. Allegheny Co., Oct. T., 1921, No. 1250, on verdict for plaintiff, in case of Wolverine Glass Co. v. William J Miller. Affirmed.

Assumpsit for breach of contract. Before SHAFER, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $35,000. Defendant appealed.

Errors assigned were, inter alia, various rulings and instructions quoting record.

The assignments of error are all overruled and the judgment is affirmed.

Ernest C. Irwin, with him George D. Wick, Reed, Smith, Shaw & McClay and Watson & Freeman, for appellant. -- The burden is on plaintiff. He must locate the fault as that of defendant. The damage must have come from defendant's act, and plaintiff must so prove: Ott v. Boggs, 219 Pa. 614; Sandt v. Foundry Co., 214 Pa. 215; Ahern v. Melvin, 21 Pa.Super. 462; Bannon v. R.R., 29 Pa.Super. 231; Boehm v. Boro., 4 Pa. Superior Ct. 385; Shaeffer v. Twp., 150 Pa. 145.

Plaintiff's pleadings are based entirely on the joint action of the "machine" and the "feeder" and there is no averment that the cause of failure lay in the "machine."

Where the trial court, under objection, admits improper evidence, the error is not cured by a mere instruction to the jury to disregard the evidence so admitted: Rosenstiel v. Ry., 230 Pa. 273; Del. Hudson Canal Co. v. Barnes, 31 Pa. 193.

Don Rose, of Rose & Eichenauer, with him R. A. Applegate and Guy D. Henry, for appellee. -- It was not in fact essential to plaintiff's case to prove that the failure to make bottles was due to the machine, rather than the feeder, and, in so holding, the trial court erred against plaintiff.

There was no reversible error in respect to the admission of, or failure to strike out, the testimony tending to prove a parol warranty: Osborne & Co. v. Walley Bros., 8 Pa. Superior Ct. 193; McCormick Harvesting Co. v. Nicholson, 17 Pa.Super. 188; Croyle v. Land Co., 233 Pa. 310.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Defendant appeals from a judgment recovered in an action in which damages were sought for breach of warranty in the sale of a bottle-making machine.

Plaintiff was equipping a plant to manufacture glass milk bottles and defendant sold to it a machine for that purpose under a written contract, in form a proposal, the material parts of which, so far as this controversy is concerned, are: "We propose to furnish you the following equipment: 1 Model PC type Geneva movement machine, . . . This machine is to be suitable for making a general line of wide mouth bottles from 2 to 64 oz. capacity. Accommodates 6 blank and 6 blow moulds mounted on the same table alternately, has a maximum working speed of 20 per minute . . . arranged for operation in conjunction with Miller Glass Engineering Co.'s automatic feeding device."

At the same time plaintiff purchased this machine, it also bought from the Miller Glass Engineering Company one of its automatic feeding devices mentioned in the contract. In general terms, the function of the feeder was to draw molten glass from a furnace and deposit it in the mould on the machine, which fashioned it into a bottle. The machine was useless without a feeder. The defendant, Miller, was the inventor of this feeding device, and owned 990 out of 1,050 shares of the stock of the Miller Glass Engineering Company which held the patents for the feeder. The engineering company and Miller had their place of business together, and the same plant, agents and employees. The machine and the feeder were installed in plaintiff's plant simultaneously and by the same workmen. When the time came to operate the machine, it would not produce bottles in salable form, and, upon complaint by plaintiff, Miller sent workmen to its plant to endeavor to overcome the difficulties and make the machine fulfill the requirements of the contract. These efforts covered a period of five months following the installation of the machine, during which time plaintiff was required to make expenditures of considerable amount, no bottles being produced. At the end of the period named, endeavors to put the machine in working order ceased and plaintiff then brought this action to recover from defendant for breach of the warranty, damages represented by the amount it had paid on account of the machine and the cost of labor, fuel, materials and expenses up to that time, and recovered a verdict.

Defendant complains that the case was tried and submitted to the jury on a wrong assumption, that plaintiff's proofs were that the two machines working together would not produce the bottles and that the court at the close of the testimony ruled that his only responsibility was for the machine and not for the feeder, that, while this was the ruling of the court, there was no proof that the cause of the failure lay in the machine; that the court erred in charging in effect that, although defendant was liable only for the machine, he could be held for defects in either the machine or the feeder; appellant further complains that there was error in admitting evidence of an oral warranty in preliminary negotiations for the sale of the machine differing from the written one.

We think defendant's undertaking was much broader than he assumes it to be. He was not alone to furnish the bottle-making machine, but, in the language of the contract, such a machine "arranged for operation in conjunction with Miller Glass Engineering Company's automatic feeding device." The agreement was that, so arranged, "It is to be suitable for making a general line of wide mouth bottles." Defendant stipulated that the two appliances were together to be a working unit to produce the commodity desired and recognized this, after the installation of the first feeder and when satisfactory results were not obtained, by seeing to it that another feeder was installed. Under the contract as made, it would not be within reason and common sense to say that, if the machine was perfect as a machine, although it would not produce bottles when arranged for operation in connection with the feeder, defendant's obligation under his contract had been discharged, any more than it could be tolerated that one who had agreed to furnish a steam engine, to be arranged for operation in connection with a certain kind of boiler, and when thus coupled up that it would produce a given horse power, had met the requirement of his undertaking by showing the installation of a perfect engine which however would not produce the result required when operated in connection with the boiler.

On the trial, plaintiff was unable to indicate specific defects in the machine and established its case by showing that the machine would not manufacture the bottles. It proved by the testimony of defendant himself that there was no fault in the feeder and argues from this that the imperfections must have been in the machine, although particular deficiencies could not be pointed out. Defendant's contention is that he was in no way responsible for the action of the feeder and that in order to entitle plaintiff to recover, it had to show that the fault was with the machine. With this we cannot agree. It was defendant's undertaking that the machine should be suitable to make a general line of wide mouth bottles, but not to do this in itself, but when "arranged for operation in conjunction with" the feeder. While appellant's position is that the case was tried on a wrong theory, that plaintiff's proofs were to the effect that the two machines working together were not a success whereas the court ruled after the evidence was closed that defendant was liable only for the performance of the machine, our view is if this ruling was made as broadly as the plaintiff sets up, which we think it was not, that this was an error made by the court against appellee, because, as we construe the contract, plaintiff was entitled to show...

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