17 N.W.2d 562 | Wis. | 1945
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *464 Action begun October 16, 1941, by John R. Jones against Pittsburgh Plate Glass Company for damages for breach of warranty and negligence. Defendant demurred to each' of two causes of action. The demurrer to the first cause was overruled and sustained as to the second. Defendant appeals from that part of the order which overrules its demurrer to the first cause of action. Plaintiff served notice of review of the ruling sustaining the demurrer to his second cause of action. The complaint is lengthy, reciting much irrelevant and evidentiary matter. Only the most material allegations will be referred to. The main point of the case is found in the facts related to a physical injury sustained by respondent, and set forth in each cause of action as a basis of claim for damages although more particularly are those circumstances relied on in the second cause of action. The sustaining of the demurrer to that cause of action logically leaves the respondent with a possibility of recovering very small or nonfinal damages in any event.
In the first cause of action challenged, respondent alleges that he is a carpenter and general contractor doing business in Milwaukee that appellant, a Pennsylvania corporation, is engaged in the manufacture and sale of plate glass and like products'; that on November 15, 1940, respondent ordered eight lights of glass; that appellant accepted the order. On November 16th, respondent received the glass with a slip labeled "order return," showing quantities and sizes of glass; that the itemized list included eight lights of varying sizes, one of *465 which was represented as measuring twenty-one and one-eighth inches in width and thirty-one and one-eighth inches in length; that respondent informed appellant at the time that the glass was for the particular purpose of glazing window sashes; that appellant knew or should have known from the order and usage of the trade that each of said lights of glass was to be cut to fit a particular window sash; that appellant warranted the said glass to be cut exactly to the size ordered. On November 25th, respondent inserted seven of the eight lights without difficulty, but on November 26th, when attempting to insert the eighth light, it slipped out of his hands cutting his wrist. The respondent alleges that the injury "naturally, directly and proximately resulted from [appellant's] breach of warranty as to the length of said pane of glass," the glass being seven-eighths of an inch longer than ordered. The complaint asks for damages resulting from the injury and also for loss due to delay in completing the glazing job and the expense in time and money spent in securing and buying a pane of glass of the right size.
A demurrer was sustained to the second cause of action, in which respondent alleged that the negligence in failing to cut the pane of glass to the requested size was the proximate cause of the injury and for which appellant ought to respond in damages.
With respect to the first cause of action, appellant contends that, since there was merely a delivery of a larger quantity of glass than respondent ordered, there can be no breach of warranty. This overlooks the allegation in respondent's complaint that the glass was bought for a special purpose, i. e., to be fitted in a window frame of certain dimensions; that the defendant was aware of such purpose and that, therefore, respondent was contracting for preciseness and accuracy in the size of the pane of glass — not for a certain amount. The paper called "order return," accompanying the order with the size of each pane listed thereon, was a sufficient affirmation *466 that the panes so sold conformed to the specifications to constitute an express warranty by the appellant.
Appellant further seeks to sustain the demurrer on the ground that respondent had adequate time within which to inspect and discover the alleged defect in the glass. But there is no duty of inspection in the case of an express warranty. The purchaser may rely on the representations of the seller and even though he be negligent in discovering the defect, may rely on the warranty. Hoffman v. Dixon (1900),
However, the amount of damages which respondent is entitled to is limited by the rule that only such damages are recoverable as are the natural and probable consequence of the breach of warranty. Those damages include direct damages' and such as the parties contemplate would be likely to result from a breach thereof when the contract was made. This case is one of simple contract of sale. The physical injury alleged as a consequence of the mistake in measuring the piece of merchandise is the result of an act too remote from the transaction to be legally related thereto. It is a special and unrelated circumstance not thought of when the sale was made. We surmise that the ruling sustaining the first cause of action was based on the apparent existence of a breach of warranty and without a determination that the appellant was responsible for the remote result. The respondent's damages are the amount which will compensate him for the difference in value to him of the pane of glass he received and the value of the piece for which he contracted. 2 Mechem, Sales, p. 1450, sec. 1817; 2 Williston, Sales, p. 1537, sec. 613. While most courts recognize the right of a buyer to consequential damages, the general holding is that the liability is only for such damages as are natural and probable consequences of the breach and such as were within the contemplation of the *467
parties. Richmond v. Cretens (1921),
In the instant circumstance, the buyer bought the pane of glass for the purpose of using it in a window frame of like dimensions. Personal injuries received by him in handling the glass cannot be said to be within the contemplation of the parties and included in the warranty. Only where the defect in the article sold is of a sort likely to cause the injury which took place may damages for such personal injuries be recovered. 2 Williston, Sales, p. 1545, sec. 614a.
Since, however, respondent has alleged as damages the expense incurred in securing a pane of the correct size and this damage flows directly from the appellant's failure, a cause of action for breach of warranty has been stated although nominal damages only may follow.
As to the second cause of action, respondent filed a motion to review the part of the order sustaining the demurrer. Concerning this, the appellant makes no complaint, but of this ruling, the respondent complains. A question was raised during the argument as to whether such review may be had on notice, or whether respondent should be required to appeal from that part of the order inasmuch as the appellant appears to confine his appeal to that part of the order overruling his demurrer to the first cause of action. Sec. 274.12, Stats., provides: "In any case the respondent may have a review of the rulings of which he complains, by serving upon the appellant any time before the case is set down for hearing in the *468 supreme court, a notice stating in what respect he asks for a review, reversal or modification of any part of the judgment or order appealed from."
While the language used is such that some uncertainty may be pointed to, it is considered that the historical development of the method of review on appeal from the time when it was necessary to start original actions in a higher court to obtain review, to the present appeal procedure including the provision of a motion for review by respondent, indicates a clear intention to allow all disputed questions to be heard before the supreme court on one appeal when proper notice thereof has been given the opposing party and the issues are reasonably related. A review of the reported cases impels the conclusion that all orders or rulings affecting both the respondent and the appellant, when so reasonably related, may be heard whether appellant has included in his notice of appeal every part of the order or judgment or not. In Dempsey v. NationalSurety Co. (1921)
We are, however, of the opinion that the demurrer to the cause of action for negligence was properly sustained. There are no facts alleged for which the appellant is responsible, sufficient to constitute a cause of action for negligence. Although it is generally said that the determination of negligence is a question for the jury, still where it clearly appears in a complaint that the acts do not constitute an invasion of a protected interest, there is no cause of action. Sec. 284 of the Restatement of Torts defines negligent conduct as "an act which the actor as a reasonable man should realize as involving an unreasonable risk of causing an invasion of an interest of another." And in Hasbrouck v. Armour Co. (1909)
The cases of Koehler v. Waukesha Milk Co. (1926)
The demurrer to the second cause of action was therefore properly sustained.
By the Court. — Both orders are affirmed. Case remanded for further proceedings according to law. No costs allowed to either party upon this appeal. Respondent to pay clerk's fees. *471