This is an action to recover a remainder of $1531.79, due upon an account for certain patented building materials sold and delivered by plaintiff, a manufacturer in Canton, Ohio, to a firm of building contractors in Kansas City, composed of defendant’and Frank R. Beatty. Both members of the partnership were sued by plaintiff but service could not be obtained upon Beatty and the action proceeded against defendant Crites alone who filed an answer and counterclaim. At the conclusion of the evidence the court instructed the jury to find for plaintiff for the full amount of the demand in the petition and submitted certain issues of fact relating to the counterclaim which were resolved by the jury in favor of defendant. The verdict was for plaintiff on the petition for $1531.79, for defendant on the counterclaim in the sum of $1800, and ended with the recital “deducting the lesser amount from the greater we find the issues for the defendant in the sum of ($268.21) two hundred sixty-eight dollars and twenty-one cents.” Afterward defendant, in obedience to a peremptory suggestion from the court on the hearing of the motion for a new trial, entered a remittitur in a sum sufficient to equalize the claim of plaintiff and counterclaim of defendant, and judgment was rendered accordingly. Plaintiff appealed.
The Board of Education of Winfield, Kansas, let the contract to Crites and Beatty for the construction of a large school building for which plans and specifications had been prepared by architects in Kansas City and accepted by the board. The building was to be fireproof and the specifications called for concrete floors in the rooms, halls and corridors and gave the general contractors the option of “using the Berger metal lumber, or any other patented system of fireproofing in place of the system shown and specified, providing there are sufficient details and specifications filed with the proposals to permit them to form an
The Berger system had been on the market about three years and the inventor was the manger of plaintiff’s “metal lumber department.” He examined the plans and specifications of the school building before submitting a bid to Grites and Beatty for the installation of his system in place of the reinforced concrete floors for which the specifications included details. The essential difference between reinforced concrete and plaintiff’s “metal lumber” construction is that in the former the tension is divided between the concrete and steel rods it embodies while in plaintiff’s system, the concrete is laid on a steel substructure and is not intended or relied upon to take any of the tension which, including the weight of the concrete, is borne entirely by the “metal lumber.”
The inventor thus describes the system: “The Berger fireproofing system, known as metal lumber, and which is referred to in this case, consists of pressed steel sections, with bearings, such as I-angles, T’s and so forth — and is designed to take the place of wooden joists- — they are used as joists, and placed sixteen inches on center — both in the joists and studs. On the top is used an expanded metal lath, ranging from number twenty to number twenty-four gauge, and the bottom of the joist is arranged with prongs, by means of which the ceiling metal lath, of number twenty to number twenty-four gauge iron is attached. That is used in all of these plans. In the joist proper, the joist is provided with bridging. The joist consists of two sections, riveted back to back. Between these rivets there is an aperture formed by the joist going back to back; and in that a nail can be placed, the same as in a wall, and a nail can be driven in that. The bridging comes in twenty-inch iron — which is a tension bridging — and should be nailed in between the
Reduced to a more concise description the bed for holding the concrete is a reticulated steel mesh supported by steel joists or “I” beams.
The bid of plaintiff to furnish the materials for the floors for $12,000 was accepted by the contractors and the materials were delivered by plaintiff and put into the building by the contractors who mixed and laid the concrete in accordance with the requirements of the specifications. The concrete thus laid proved a failure, as the evidence of defendant tends to show, in two particulars, viz., first, on account of the lightness of the “metal lumber,” the bed sagged under the weight of the concrete which did not exceed the thickness prescribed in the specifications and thereby caused the concrete floor to crack in various places and, second, the spreading of thin concrete over a sievelike bed with nothing underneath to prevent drainage caused the water to drain away from the admixture and prevent the necessary coalescence of its elemental substances.
Expert evidence introduced by defendant supports the conclusion that the failure of the floors to conform to the standard of the specifications and their consequent rejection by the architects were due to one or both of such causes.
The evidence of plaintiff tends to show, first, that there was no deflection or sagging of the metal bed which repeated preliminary tests had demonstrated of sufficient strength to carry the intended load without substantial deflection and, second, that the lack of
The plans and specifications must be regarded as a part of the contract between plaintiff and the contractors. [Miller v. Light Co., 133 Mo. 205; Sundmacher v. Lloyd, 114 Mo. App. 317.]
Plaintiff invokes the rule that “where a known, described and definite article is ordered by a manufacturer, although it is stated by the purchaser to be required for a particular purpose,-yet if the known, described and definite thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.” [Seitz v. Refrigerating Co., 114 U. S. 510; Benjamin on Sales, sec. 657; Hotel Co. v. Wharton, 79 Fed. Rep. 43.] Thus if a contractor should order “I” beams of a certain size which the manufacturer knew were to be used in a certain construction for which they would be too small and weak, he would not be held to an implied warranty of them
The present case cannot be said to fall under that rule for the reason that the inventor and manufacturer ■of the patented system obviously possessed superior knowledge to the contractors and others interested in the construction of the building respecting the utility •of the invention and its adaptability for the particular use for which it was purchased. It is true- as suggested by counsel for plaintiff that the contractors must have known that if thin concrete were poured •over a sieve-like bed, water carrying cement and sand would fall through the sieve and it must be conceded "there can be no warranty implied against an obvious •defect nor against one known to the purchaser. [Doyle v. Parish, 110 Mo. App. 470.]
But the contractors did not know and should not "be required to have anticipated that concrete containing only enough water to moisten its substances could not be successfully spread over the bed and given the ¿finishing coat, nor should they be held to have anticipated that the bed furnished by the manufacturer was too light to carry the load without injurious deflection. As to such matters plaintiff knew that the contractors were compelled to rely upon its judgment and skill, and we hold the case falls under the rule that “where a manufacturer contracts to supply an article which he manufactures to be applied to a particular use, of which he is advised, so that the buyer neces
The evidence of defendant tends to show that the vital defects of the system were latent and could not be discovered by an ordinarily careful and skillful builder except by the test of use. This evidence is strongly contradicted by that of plaintiff but such contradiction raises issues of fact which we find were properly defined in the instructions.
Other points presented in the briefs of counsel for plaintiff have been examined and are found to be without merit. The cause was tried without prejudicial error and the judgment will be affirmed.
It is so ordered.