182 A.D. 538 | N.Y. App. Div. | 1918
This is an action for breach of an implied warranty in a contract of sale.
The plaintiff is a domestic corporation whose principal place of business is in the city of Olean where it conducts one of its glass factories and employs about 100 men.'
The defendant is a foreign corporation of the city of Pittsburgh, in the State of Pennsylvania, and is engaged in manufacturing and selling flux blocks and other blocks and material used in the construction and maintenance of furnaces for melting the constituents of glass, referred to herein as glass furnaces.
The facts (some of which are conceded and many of which are established by uncontradicted evidence) which the jury were justified in finding are as follow:
The defendant and its predecessors up. to and including the year 1911 had for many years furnished the plaintiff with flux blocks and other material for use by the plaintiff in the construction, reconstruction and maintenance of its glass furnaces. These blocks are made of clay and resemble great bricks. Among the usual sizes of such blocks are those twelve by twenty-four by eighteen inches and twelve by twenty-four by thirty-six inches. The plaintiff was engaged in manufactur
After the construction or reconstruction of one of these furnaces, the first material introduced into the tank and subjected to the heat is cold glass to be melted for the purpose of glazing the flux blocks to prepare them to resist more effectively than otherwise they could the intensity, of the heat to which they are to be subjected in the process of melting the sand, lime and soda.
In this same- building where the furnace just described is located, there is a much smaller furnace used by the plaintiff as auxiliary to the work of the large furnace in the busier part of the season.
When the defendant furnished to the plaintiff the flux blocks in question it knew the exact situation of the plaintiff’s plant in Olean, its facilities and limitations; that if this large furnace should go out of commission the plaintiff’s business would be substantially at a standstill, and that if the flux blocks in question should prove tp be defective, as they did prove to be, plaintiff’s loss by the interruption of its business and the expense of a new furnace would be great, and, probably, no less than the jury found it to have been.
The jury rendered a verdict for $4,000 which does not seem to be excessive.
Our Sales of Goods Act (Laws of 1911, chap. 571, in effect Sept. 1, 1911, adding to Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], §§ 82-158) has no application here because the cause of action accrued before September 1, 1911. So that this controversy must be decided under the common law.
There was a general allegation of the warranty in the complaint and under this allegation proof of the implied warranty was admissible so that the complaint need not have been amended and the defendant was bound to assume that it would need the proof on the trial of which it complains it was deprived. (Rogers v. Beckrich, 46 App. Div. 429.)
We have here the case of an executory contract for the sale of articles manufactured by the seller and sold for a particular purpose which articles proved in use to be defective. The defects were riot discoverable by ordinary inspection and tests. The rule seems to be well settled that where the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process
The defects in the flux blocks were latent and the damages flowing from the breach of the implied warranty that there were no such defects were to be determined by the jury. Such damages reasonably to have been contemplated by the parties are of two kinds, (1) those arising from the expense of the building of the new furnace and (2) those arising from loss of profits due to the interruption of the plaintiff’s business.
We think the plaintiff was entitled to recover the reasonable cost of the construction of another furnace in just the condition, of the furnace that had to be torn down would have been on the 30th day of March, 1912, if the flux blocks had been without the defects disclosed. It would not be practicable to construct a furnace in such condition but a close approximation to the same result would be attained by taking from the reasonable cost of the new furnace the value of the use of the furnace torn down up to March 30, 1912. The evidence of the cost of the new furnace would be properly received as prima facie proof of the reasonable cost thereof. (Mayor, etc., v. Second Avenue R.R. Co., 102 N. Y. 572.) What amount should be deducted for such use might be difficult to determine, but would not be so uncertain as to prohibit its consideration by the jury. We think the course adopted by the trial court in this respect was right.
It is well settled that the loss of profits in such a case as this is an element entering into the damages sustained by
Chapman v. Fargo (223 N. Y. 32) and Cramer v. Grand Rapids Show Case Co. (Id. 63) are easily distinguished from the case at bar.
The close question presented in the record arises from the instructions to the jury involving the application to the facts of the rule that there was an implied warranty that the flux blocks in question were reasonably fit for the purpose for which they were manufactured and sold: The counsel for the defendant now criticises the trial court for using the , unqualified word “fit” instead of “ reasonably fit.” It is apparent that the jury were not misled by what was said by the court in this respect and the failure of the defendant to raise the question on the trial is a waiver of the error, if such omission .could be regarded as such in the circumstances.
The jury were justified in finding upon the evidence, as we have already pointed out, that flux blocks must be usable in a glass furnace like that in question for at least the period of ten months, the glass-making season, and that these flux blocks were sold with the distinct understanding by both the plaintiff and the defendant that they were to be usable for the glass-making season. Hence the jury were justified in' finding that the minimum degree of reasonable fitness, required that these flux blocks should have lasted until the end of the glass-making season of 1911-1912. Ordinarily, if a party desires that an article which he is about to purchase shall be warranted by the seller to be usable for a given period, he should exact an express warranty to that effect. There is no reason a priori why in a given case there may not be an implied warranty that an article will be usable for a minimum period of time. We think the peculiar circumstances of this case furnish the basis for such a warranty.
The counsel for the defendant requested the court to charge as follows: “ I ask your Honor to charge the jury that if the defendant made the flux blocks of first class material and first class workmanship then the plaintiff cannot recover in this action, no matter if the furnace had given out before the end of the season of 1912.”
In response to this request the court said: “ I 'will decline
An exception was taken to this ruling.
In other similar requests which were refused and such refusals excepted to, the expression was blocks “ of the best material and of the best workmanship.” It will be observed that it was the aim of the court to enforce the rule that there was an implied warranty that these blocks should be reasonably fit for the purpose for which they were manufactured and sold and to keep the minds of the jury upon the evidence that they were in fact defective and unfit for that purpose. We note in this connection that no witness was called who participated in the making of the flux blocks in question. The appellant complains that it omitted to have present in court such witnesses because of its mistaken notion that the only permissible proof of the warranty alleged in the complaint was such as must show an express warranty.
At all events, it is well established that the defendant is liable for a breach of its implied warranty that the flux blocks were free from latent defects, the verdict of the jury is just and we think that the judgment and order appealed from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.