113 A.D. 562 | N.Y. App. Div. | 1906
The following is the opinion of the referee :
Both of these actions were commenced in the County Court of Erie county by the plaintiff, a manufacturing corporation doing business at Buffalo, N. Y., against/ the defendant, a corporation engaged in the elevating of grain and the owner of a'large elevator, known as the “ Dakota Elevator,” situate in the Buffalo harbor.
In the year -1900 the defendant was engaged in repairing extensively its elevator and had let the contract to the plaintiff to furnish certain machinery, to be used'in the interior of the elevator building proper. The defendant in and prior to the month of May, 1901, had let the contract,to the American Bridge Company for the construction of two movable towers, which were to be used in connection with the elevator proper. These towers moved upon a dock in front of the elevatoi- building and between it and the Buffalo harbor, were constructed of iron and were about thirty-four, feet in length, running'parallel with the face of the elevator, about twenty-one or twenty-three fee.t in width and one hundred and forty-five feet in height and weighed about 214 tons. The two tracks upon which these elevators moved back and forth upon the docks were ordinary railroad tracks, the ordinary gauge and the ordinary distance between. Each of the towers rested upon thirty-two car wheels,
The defendant employed a competent millwright "and mechanic named Brown to make a plan-, of and'-designs for the machinery to he placed in the tower, including the spur wheel. The plans drawn by Brown showed the size of all the shafts, the dram, the different wheels, showed the number of teeth and the. pitch of the teeth, -but did not show the thickness or weight, of the various parts. By direction of the defendant Brown applied to the plaintiff’s general manager to make with it a contract for the;manufacture an'c^ delivery of the various parts of the machinery specified upon the plan, which . was produced and shown to the plaintiff’s agent. The plaintiff’s' agent stated, that it could make all of the-machinery excepting the. spur and the pinion wheels. It had no- patterns for such wheels and it would cost from $75 to $100- extra to make the patterns.
At the time of the contract, both the agents of the plaintiff and of the defendant knew the purpose for which the machinery was designed and what it was expected to do and knew in a general way the size of the towers that it was expected to move and control and the place where the towers were located, and in a general way the velocity of the wind storms which might be expected to occur in the Buffalo harbor from time to time. The plaintiff manufactured all the machinery ordered, excepting the spur and pinion wheels, winch it ordered from the Gleason Company, reputable manufacturers, doing business in the city of Bochester, E. T. The wheels were ordered in the rough, that is, a core was to be left through the center of the hub, which was afterwards to be bored out and the dimensions of the wheels, pitch of teeth, number of teeth, and general size were as specified in the plan prepared by Brown, but the thickness of the different parts of the wheels was left to the determination of the plaintiff and. the Gleason Company. The wheels were manufactured by the Gleason Company in accordance with the plans and were of the proper weight and the thickness of the parts was proper and in accord with the size of the wheels as given upon the plan. After the spur wheels were delivered, the plaintiff caused the core' of the spur wheels to be bored out, so that the shaft might be accurately fitted and caused a key way to be planed out on the inside of the circumference of the core. The shaft was correspondingly keyed by the plaintiff and all of the machinery, including the-steel key, delivered to the defendant and the defendant installed the machinery in the tower Eo. 1, procured its cables and attached them properly to the drum and put the tower in commission on the 14th of April, 1902, and operated it almost continuously without any difficulty or accident until the afternoon of the 3d day of May, 1902.
Two actions were brought by the plaintiff against the defendant, one to recover for a balance due upon the. purchase price of the machinery that went, into the movable towers and which action is known as- action No. 1, and another action to recover a balance claimed to be due for machinery furnished and labor performed in tlie elevator proper, which action is known as- action No! 2. ■ In both of these actions the defendant,set up the same counterclaim. Upon the trial it was stipulated that in action No. 2 there was a certain amount due and unpaid to the plaintiff,, and that the referee might direct judgment for that amount, without costs, in favor of the plaintiff, without prejudice to the defendant’s counterclaim set up in' action No. 1, the purpose being ta try out the question of the counterclaim in the one action, action No. 1. .Accordingly a report in action No. 2 has been made by the referee, directing judgment for the amount agreed upon, without prejudice to the counterclaim". ■
It appeared upon the trial, as shown in the findings of fact, that the spur wheel broke.solely by reason j of the large interior flaw or blow hole in one side of the hub, which was not, discoverdble"by either the "plaintiff or the defendant by the application of any known test short of the destruction of the wheel itself; that this weakness occasioned by the flaw was intensified owing to the-, fact that the
There was clearly no express warranty upon the part of the plain"tiff that the machinery would' in any respect, when furnished, be fit for the purposes for which it was ordered, and the question is squarely presented here whether, under the circumstances of this case, there was an implied warranty upon the part of the plaintiff, or, to 'speak more accurately, an implied condition, which the law will presume to have been a part of the contract itself, that this spur wheel should be free from any latent defect that would render it improper and unsafe tó use it for the purposes for which it was designed.
Before taking up the discussion of that question it is well to dispose of several questions that were litigated upon the - trial and argued with great force by counsel for both parties.
First. It is claimed that it was negligence upon the part of the defendant in view of the severe wind storms to which the harbor at ' Buffalo is subject, to leave the tower at rest, relying upon its being held by any interior machinery; that it was contemplated by the parties that the machinery dévised by the defendant and furnished by the plaintiff was for the purpose only of operating the tower at a time when a large number of defendant’s employees were'present in and about the tower assisting in operating it; that it was not intended that such machinery should be relied upon to'protect the
But in the view that I have taken of this cas'e, I do hot- deem.it. necessary to pass' up'on these questions: The view that I have taken of the case disposes, if correct, of the defendant’s counterclaim u pon other-grounds and upon the main ground that there was no warranty; express or implied, that the wheel in question should be free from any internal defect; _ ■
Second. A large amount of evidence was offered upon the trial' as to whether the accident, was due at all to the internal defect in the wheel and Upon the question, whether it was nót due to a combination of causes, producing a force which would have ruptured the
So far as the backlash is concerned; in deciding between the opinions of the eminent engineers, who know far. more about the subject than -the; Court, it hevertheless becomes the court’s ■ duty to decide which appears the better reason. -The' witness Souther states that the backlash, as proven by actual experiment, would be taken up-in one-half of a revolution of the worm and thatwhen.tl-ie backlash was taken up the result would not be a sudden stoppage of the towér, but'what he described as aYushiori stop. . The resistance upon the drum, even assuming the existence of the backlash, would prevent the sudden change wdiich might have resulted from taking up a slack in the cable. I have, therefore, come to the conclusion upon this question that , the wheel'was ruptured not by reason of any tremendous force being ekert-ed oh account of the existence of .slack in the cable or backlash, permitting.the tower to acquire.a great momentum, but that it was ruptured solely by reason 'of its inherent weakness,, which, disabled it from withstanding, the force exerted by the wind blowing at the rate of'sixty miles an hour.
The rule of common law, caveat emptor, and riot the rule of civil lavv, caveat vendiior,, applies to all sales of personal "property in the State of Hew York, whether executed or executory. But to this ■ rule, as to all rules of law, there are, certain well-grounded exceptions recognized by our courts. The first exception is that where the seller is the riianufactnrer of the goods sold, whether the contract be executed or executory, there is an implied condition or warranty that-the article sold shall be fit for the purpose for which it is ■sold if the particular purpose be specified,"and that it shall be free' from any internal defect which fenders it unfit for the purpose specified. Second, in 'the case of an executory, contract for- the sale of
In the case at bar the plaintiff and defendant stood upon the same plane; each had the same knowledge of the kind of machinery ordered and the purpose it was to serve as the other. To use an old expression found in the books, they dealt at arms’ length.' The defendant devised the plan of, the kind of, and the size of machinery which it desired, and contracted with the plaintiff to manufacture and procure it. In the view which I take of this case, therefore, if the plaintiff had manufactured all of the .machinery ordered, in accordance with the specification, and plan delivered to it by the plaintiff, had used good material, applied skillful workmanship and produced the machinery as ordered by the defendant, free from any flaw, and the machinery so manufactured and delivered when . installed in the defendant’s tower, had utterly failed to work or had proven altogether too light to do the work required of it and had collapsed by reason of it not being sufficiently 'strong and large, and by reason of fault in designing it, then the defendant would have had no cause of action against the plaintiff,' for under the circumstances of this case, the defendant having obtained exactly the thing which it ordered and the defect not being in its manufacture,
Upon the-other hand, had the plaintiff manufactured the spur-wheel in question and delivered it to the "defendant for use in its' tower, and- it had contained the flaw in question,, and the results which followed here "had followed the use of that wheel, then s „ ' clearly within all- the authorities the plaintiff would have been liable to the defendant foV such damages as' were the proximate and natural .result of the breaking of the wheel, and, therefore, -the case nari'ows itself down to this. Inasmuch as the wheel was not manufactured by the plaintiff to the knowledge of the defendant, but was procured by the plaintiff from a reputable manufacturer, and bontained' the latent and undiscoverable flaw which it did containj is the plaintiff liable for such damages as naturally 'flow from the breaking of the wheel, solely upon the ground that the contract was executory and- not executed ? For clearly, if at the time the wheel was ordered,' the plaintiff had had -it in stock,- already made by the Gleason Company, of the exact size and dimensions specified in the plan submitted by the defendant, and the plaintiff had said, -“ here is a wheel, exactly such as you have drawn, made by the. Gleason. Company, which you can have for so much money,” and'the defendant had purchased it, taken it away and used it in its tower, then clearly within all the authorities the plaintiff would not have been liable upon- any implied warranty of fitness, .upon account of the -existence of the latent defect, solely. because the contract' was executed and not executory.
If, therefore, the rule which now.obtains in executory contracts,, 'that there is an implied condition that the property purchased, when delivered, shall be of the kind ordered and merchantable,-extends-to a latent defect in the - property undiscoverable upon inspection and unknown to- both the seller and purchaser, then there is in every executory contraqt of sale the same implied warranty against latent defects in manufacture that obtains where the seller, -is- the manufacturer and • all -distinction between the tivo classes of cases is at onqe swept away and it ’becomes immaterial, where an article is
If this .is the rule it should rest upon some sound and logical reason. The rule that implies the warranty by the manufacturer against secret defects, which obtain in the process of the manufacture itself, rests upon and has for its foundation the presumption that the manufacturer either knew of the care that is used in the manufacture of the article, or was bound to know what degree of care was used in such manufacture. None of these things can be known by the purchaser and, therefore, the'rule is grounded upon sound reason. The rule which obtains in an executory contract of sale of personal property, that there is an implied condition that the goods prdered shall, when delivered, be of the kind ordered and merchantable, rests upon the same ‘solid foundation, the presumption of superior knowledge upon the part of the seller. He knows by whom the goods are manufactured, presumably from whom they are to come, and, presumably, their condition. When they are delivered the buyer is bound to promptly examine and if they are not of the kind ordered, or if of that kind, not merchantable, he is bound to return or offer to return them promptly and notify the seller of the situation, and if he fail to do that, he is deemed to have accepted the delivery of 'the goods as a compliance with the seller’s contract and cannot be heard thereafter to complain. It is most pertinently asked by defendant’s counsel, whether this rule cannot be carried a step further, because if there is, a condition implied in an executory contract that the goods shall be of the kind ordered and merchantable, and they are apparently of the kind ordered and apparently in merchantable condition and no amount of skill and care in their inspection will disclose the secret defect, then applying the rule that a party is bound to return, or offer to return, only when the defect is apparent and can be discovered by inspection, but is not bound to offer to return or to return if the defect cannot be discovered upon inspection and can only be discovered when the goods themselves are destroyed by use, then why may it not be said that in an executory contract of sale, where there is a latent defect in the goods delivered not. discoverable upon inspection, the mere fact that the contract is executory implies a warranty that the goods are free from any secret defect which survives an acceptance, The
The leading case upon the subject of implied warranty upon the part of the manufacturer in the State of New York is Hoe v. Sanborn (21 N. Y. 552). In that case Judge Selden, in a very exhaustive opinion, reviews" the leading-English cases upon the subject and states as a foundation of the rule holding a manufacturer liable for secret .defects, that the 'manufacturer either actually or presumably has knowledge of the defects, whether the article was actually manufactured with his own hands or through the medium of his servants and agents. At the conclusion of his opinion he states the rule to be as follows : “ The vendor is liable in such pases for any latent defect not disclosed to the purchaser, arising from the riianner in which the article was manufactured; and if he knowingly uses improper materials he is liable for that also, but not for any latent defect in the material which he is not shown and cannot be presumed to have known.” .
It will be observed that the rule was not carried to the extent that it has been in some later cases, holding the manufacturer liable Where the latent defect arose, nbt from any improper method used. in the process of manufacture, but arose from a defect which was latent and unknown to the manufacturer in' the-raw material used! This doctrine Hoe v. Sanborn expressly repudiatés for the reason that the rule holding the manufactij-rer liable ceases when it is. shown that he had no knowledge and could have none, of the secret defect in the raw mate'rial which produced, without his fault, the latent defect. This case has,been'followed in the State óf Hew York and in many of the States of the Union, and its authority has never been questioned. -
It was distinguished in Rodgers & Co. v. Niles & Co. (11 Ohio St.
. In Jones v. Bright (5 Bing. 533), one'of the leading English cases, a manufacturer of sheathing copper agreed to deliver copper for sheathing a certain ship. After one voyage the copper was found full of holes, due to some secret defect in the copper. The judge presiding at the trial submitted to the jury two questions, whether the defect-in the copper was due to improper methods in manufacture, or whether it was due to an undiscoverable defect in the raw material used in the manufacture of the sheathing copper, thereby expressly recognizing the rule as laid down in Hoe v. San-born. The jury returned a verdict for the plaiqtiff, but answered the two specific questions by.saying that the jury did not know and could not ascertain from the evidence, whether the secret defect was due to improper process in the manufacture, or to a latent defect in the raw material used. Nevertheless, the court gave judgment for the plaintiff, upon the theory that it was for the manufacturer to show that the defect in the manufactured article was not due to any neglect upon his part.
Upon the question of the liability of the manufacturer of an article made for a specific purpose, the opinions of the court in Carleton v. Lombard, Ayres & Co. (149 N. Y. 137) and Bierman v. City Mills Co. (151 id. 482) are exceedingly interesting, and the. rule laid down in Hoe v. Sanborn is reiterated with great force in the opinions of the court. ,
An apt illustration of the rule that prevails in cases where a per
A careful study and reading of the reported cases, and" a careful • study- of the text "books upon the subject, readily convinces the student that much, of the apparent conflict in the cases is due to loose language employed in-the determination of the several cases as they ■arise and -in using language much broader ■ than is necessary to a proper disposition of the case itself. As an illustration of this, take , the case of Howard v. Hoey (23 Wend. 350). That - is one of the leading cases in.the State of New York- upon the .subject of the
As said, this case is one of the leading cases in the State of Eew York upon the subject of implied condition in executory contracts, that the goods when delivered shall be of the kind ordered and merchantable, but it docs not go to the extent contended for here. It has been followed with approval, so far as the facts of the case were concerned, in a large number of cases, notably Reed v. Randall (29 N. Y. 358), and in a large number of text books, and in the v.arious encyclopEedias of -law it is referred to in notes supplementing the text as authority for the proposition that in every executory contract there is an implied warranty against secret defects.
In Randall v. Newson (L. R. 2 Q. B. Div. 102) a carriagemaker was applied to by the owner of a carriage to furnish a carriage pole
In the opinion in this case but little stress is laid upon-the circumstance ‘that the seller was the manufacturer of' the pole. The greatest stress is laid upon the fact that the seller designed and produced the pole for a specific purpose, selecting the material and determining the dimensions. A careful reading óf the cáse does not show whether the pole broke'by reason of . its being composed of improper materials, by reason of its' being too small for'the purpose, or by reason of some secret and unknown defect in the wood itself, and the opinion of the court, read-as an essay upon the law and not as applicable "to the particular facts of the case itself, is certainly broad' enough to be . construed as. laying down the doctrine that in an executory contract there is an implied warranty against latent defects. •' ■
.In England, under the act of 1893,
In that case a tippler went into a beer house of the defendant and called for Holden’s beer, a kind,of beer'that was manufactured by á corporation known as Holden & Company, Limited. The -beerseller gave him Holden’s beer, which he drank and became very ill, - It appeared by an analysis that Holden & Company had purchased of a reputable manufacturer a large amount of sugar which Was used in the manufacture of their beef. This sugar contained arsenic, in poisonous quantities, but it was conceded that the defect was und'isco.verable upon inspection and could only be. discovered by- actual use. The court submitted to the jury the specific question whether the plaintiff relied for the good quality of. his beer oil’the skill' or judgment of the.defendant and the jury answered this-question in the negative, although they found á verdict for the
Subdivision 2 of the section was as follows: “ Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality; provided that if .the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.”
The court held the seller liable directly to the consumer for damages under the 2d subdivision of the section, upon the ground that the goods were bought by description from the seller who dealt in goods of that description, and that, therefore, under the literal interpretation of the subdivision, there was no escape from the conclusion. It is proper to say.that by section 61 of the same act the following provision appeared : “ The rules of the common law * * * save in so far as they are inconsistent with the express provisions of this act
So far as this English statute goes, it does not seem, as "said by • Justice Williams, to have altered, to any great extent the rules of the common law, but has codified them so far as- such a codification is possible, and'has abolished the distinction between the -manufacturer and a seller not a manufacturer, under certain circumstances, which at 'common law really placed them upon the same footing. But tliere is nothing in the facts of the case at bar that will bring it within the definition even of .the English act.. The • buyer did-not rely on the-seller’s skill or judgment as to-" the particular purpose for which the goods were intended, nor were they, within the meaning of the language employed, bought, by description, and, even- in England, under the English act, this case- would necessarily be determined Under the rules of the common law.
It would be needless and in fact worse than useless to. attempt in this opinion to review the vast , multitude of cases, which have arisen in England and in the different States of the United States. When these cases are critically examined it will be found that in every one of them, where there was a .latent defect for the existence of which the seller was held liable, the seller was either the manufacturer of the article itself or the buyer relied upon 1ns skill and judgment to devise the thing itself for the particular purpose for which ' it was required and thé sellen undertook, either by manufacture or by selection from others, to devise or select a thing which would, answer the" buyer’s purpose, the-buyer leaving-the deterfhination of that question entirely to the seller. ,/ • .
Counsel for the defendant has cited upon his brief a short article
Take the case of Kellogg Bridge Company v. Hamilton (110 U. S. 108). That is a case which laid down the doctrine of implied warranty where the builder and manufacturer of a bridge sold it. to another, with certain of its defects in construction due to .carelessness ; the court held, under the circumstances of that case, that there was an implied warranty, and yet the case has been cited a hundred times as authority for the proposition that in a contract of sale, purely executory, of goods not manufactured by the ^seller, there is an implied warranty against latent defects.
A case in the State of New York which would be absolutely conclusive upon me, were I inclined to an opposite opinion, was decided in this judicial department in Reynolds v. Mayor. Lane & Co. (39 App. Div. 218).
In that case an executory contract was made with the. defendant, under which it agreed to supply in the future certain water-closet tanks. The defendant ordered the tanks from a Cincinnati company, they were placed in position in the plaintiff’s building and it was then discovered that they failed to work by reason of some latent defect.
There was strong evidence in the case of an express warranty, but the 'trial justice took this question from the jury and submitted to them solely the question, was there an implied warranty, the contract being executory. The jury found for the plaintiff. The court reversed the order denying the defendant’s motion for a new trial, upon .the ground that the defendant, not being the manufacturer, there was no warranty against a latent defect, but the court strongly intimated that upon another trial an express warranty might' be established. The court in concluding its opinion says: “ It will be seen that the defendant not only had nothing whatever to do with the manufacture of the articles sold, but
This language, while rather- broad and laying down as- universal a. rule to which there are some exceptions not noticed in the language used, nevertheless lays'down the true-rule of law applicable to the facts in the case which the court -decided. The question was squarely before the court upon an executory contract for the future sale and delivery.of'goods fit for a specific purpose, and the court held that there was no implied warranty against latent effects. Surely, Upon the - facts in that case, had. the articles, when they - arrived, been of a kind different from those ordered, or not. merchantable, having patent defects discoverable upon inspection, then, within all .the rules applicable to that class of contracts, thé defendant could have returned, or offered to return, and escaped any. liability. - ,
One contention upon the part of the defendant’s counsel most "ingeniously urged is, that under tile circumstances .of this case, inasmuch ás the plaintiff was applied to'by the defendant to manufacture these articles, and the plaintiff suggested that it would be better to procure them elsewhere, a suggestion in which the defendant’s agent concurred, that-the plaintiff" by- selecting the Rochester firm as the manufacturer made it the plaintiff’s agent, and,, therefore, the- defect arising from improper methods of manufacture by-the plaintiff’s agent, the plaintiff became liable within -the case of Hoe v. .Samborn. But I cannot subscribe to this contention. It might with even greater force be urged that because the defendant-authorized-the plaintiff to procure the goods from any manufacturer "that it pleased to order from, that the defendant thereby constituted the plaintiff its agent fot the purchase of the goods. Either
A certain remark made by Judge Seldeh, in Hoe v. Sanborn, has in a number of cases been construed as establishing, in the case of a seller of goods, procured by him from the manufacturer, the same extreme doctrine of liability as obtains in the case of a sale by the manufacturer himself. The language used by Judge Selden (at p. 562) is : “ Where the vendor has manufactured the article with his own hands the inference of knowledge would, plainly, in many cases be strong enough to charge him even in an action for fraud". But if the manufacturing is done by agents the general principles óf law would hold the principal responsible for those whom he employs. Wherever the vendor, therefore, has himself manufactured the article sold, or procured it to be done by others, if honesty and fair dealing are ever to be enforced by law, a warranty should be implied.” In a number of cases where Judge Selden’s language has been ’ quoted only the latter part of it has been quoted, “ Wherever the vendor, therefore, has himself manufactured the article sold, or procured it to be done,” etc., the word “procured” has been seized upon as meaning buying it in the open market from another "manufacturer or ordering it from another manufacturer when it is very clear from the text of the whole of the quotation from the learned judge’s opinion that by procuring it to be done is meant procuring it to be done by the manufacturer’s own servants or agents.
Upon the whole case, therefore, I am of the opinion that there was norimplied warranty upon the part of the plaintiff against any secret defect in the spur wheels which broke and brought about the accident. ¡For that reason the defendant’s claim upon its counterclaim should be dismissed and the plaintiff should have judgment for the amount due upon its claim, with costs of the action.
56 & 57, Vict. chap. 71.— [Rep.
See § 14.—[Rep.