Milwaukee Boiler Co. v. Duncan

87 Wis. 120 | Wis. | 1894

Pinney, J.

1. The clause in the contract, “ to be allowed 130 pounds of steam working pressure by United States inspectors,” was not an assurance that the boiler contracted for would produce and maintain a working pressure to that amount. It has no reference to the capacity of the boiler, and plainly refers to the government inspection of boilers under sec. 4418, R. S. of U. S., and that it would be such a boiler that they would permit a working pressure of 130 pounds, and set the safety valve accordingly. There was no express- warranty therefor beyond the guaranty that the boiler should be a first-class job.

2. The contract contains, it will be seen, very many definite specifications in respect to the construction of the boiler and the size and character of its several parts, and it has been found by the jury that the contract in these respects had been complied with by the plaintiff. The jury was instructed that, if the boiler was not a first-class job in the particulars of construction specified and complained of, there was a failure to perform the contract, and, if it had not been performed in these respects, the plaintiff was not entitled to the full contract price if the boiler Avas Avorth less for that reason. So, it Avill be seen that the jury have found against the contentions of the defendant in these respects.

3. It was made plain that the defendant got the exact article or thing he bargained for; and, although it may have been stated that it was required for a particular purpose, still, as he did not exact an express Avarranty, he took the risk of its fitness for the intended use, and no Avarranty in that respect can be implied. Benj. Sales, § 657; Chanter v. Hopkins, 4 Mees. & W. 399; Ollivant v. Bayley, 5 Q. B. 288. In Jones v. Just, L. R. 3 Q. B. 197, 202, the rule was laid down that “where a known, described, and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the knoAvn, defined, and described thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.” "Where the buyer in such case gets what he has bargained for, there is no implied warranty. Seitz v. Brewers' Ref. Co. 141 U. S. 518, 519; Goulds v. Brophy, 42 Minn. 109; Deming v. Foster, 42 N. H. 165. The distinction seems to be between the manufacture or supply of an article to satisfy a required purpose and the manufacture or supply of a specified, described, and defined article, as in this case. In the former case there may be an implied warranty, but in the latter there is none. It is equally well settled that, if the article is sold by a formal written contract which is silent on the subject of warranty, no oral warranty made at the same time or previously can be shown, as the writing is conclusively supposed to embody the whole contract; nor can any additional oral warranty be ingrafted or added to one that is written. Merriam v. Field, 24 Wis. 640; McQuaid v. Ross, 77 Wis. 470; De Witt v. Berry, 134 U. S. 312. The ruling of the court in rejecting the evidence of McGregor, the tendency of which was to show a parol warranty or that the plaintiff knew for what use the boiler was required, was correct. The instructions of the court were in accordance with these principles, and fairly submitted to the jury the question in respect to the warranty or guaranty contained in the contract.

4. As there was no express warranty other than that stated in the contract as to finish and workmanship of the boiler, already noticed, and no warranty could be implied, the defendant has no reason to complain of the rejection of evidence bearing on the subject of damages in these respects. The claim that the grate hangers were placed too high was properly disposed of by the court, on the ground that it was a matter of opinion with machinists and engineers how high or low they should be placed, and the contract, though entering largely into details of construction, contained no specification on the subject. The defendant tes-tilled that he had had experience as a machinist in and about steam engines and boilers for over fifty years, and had had a machine shop of his own for twenty-five or thirty years; that when the boiler came he saw the defect,— that the hangers ought to be eight inches lower than they were; that the expense of lowering them was trifling; and that he knew, if. put down eight inches, the boiler would make steam better, but he started his boat without making the change, and made no change thereafter. Al-thóugh the plaintiff offered to make it, yet the defendant assumed to make it himself. He has no cause of complaint in this respect.

5. Considerable testimony was given in respect to the leaking of the boiler, but we do not see that any was excluded that was competent and proper. Three witnesses testified, in substance, that when the boiler was inspected its leaks were of no consequence, and not more than all new boilers do leak at first. The plaintiff had no notice of this inspection, and was not represented when it occurred. Other tests were had, and there was evidence tending to show that the defendant’s failure to furnish the proper means of making these tests tended to strain and injure the boiler and cause it to leak, and it was used in the defendant’s boat a considerable time without any effort being made to stop the leaks. As the jury evidently found that the plaintiff properly performed its contract, that point having been fairly submitted to them, the defendant has no ground to complain. We think that the charge of the court on this subject was correct. 1 Suth. Dam. 148; Poposkey v. Munkwitz, 68 Wis. 331.

As there are no other questions requiring attention, it follows from these views that the judgment should'be affirmed.

By the Court.— The judgment of the circuit court is affirmed.