Mine Supply Co. v. Columbia Mining Co., 86 P. 798

Mine Supply Co. v. Columbia Mining Co.

86 P. 798 | Or. | 1906

Mr. Chief Justice Bean

delivered the opinion.

It is unnecessary to notice the several assignments of error in detail. They involve substantially two questions: (1) Whether there was an implied warranty on the part of the plaintiff that the Huntington mill sold by it to defendant would successfully reduce the ores of defendant’s mine, and was fit and proper for the purpose intended; and (2) the measure of damages, if there was a breach of the contract by plaintiff.

1. There was no -express warranty of the character or capacity of the mill, but the court instructed the jury that, if plaintiff was aware of the purpose for which it was to be used by the defendant, the law implies a warranty that it should be suitable and fit for that purpose, and, if it was not, defendant is entitled to offset against the purchase price any damages it may have suffered on account of a breach of such warranty. We do not understand such to be the law. Where one contracts or agrees to supply an article to be applied or used for a particular purpose, and the buyer has no opportunity of inspection, but relies upon the judgment and skill of the seller, and not his own, there is an implied warranty that the article shall be reasonably fit and suitable for the purpose intended: Morse v. Union Stock Yard Co. 21 Or. 289 (28 Pac. 2, 14 L. R. A. 157); Gold Ridge Min. Co. v. Tallmadge, 44 Or. 34 (74 Pac. 325, 102 Am. St. Rep. 602). But where, as in this case, a known and described article is ordered, there is no implied warranty of its fitness, if it is actually furnished, although the seller was advised that it was intended for a special purpose. If the purchaser gets the article he buys, and buys that which he gets, he takes the risk of its suitableness for the intended purpose, unless there is an express warranty: 2 Mechem, Sales, §1314; Benjamin, Sales (Bennett’s 6 ed.), 644; Lukens v. Freiund, 27 Kan. 664 (51 Am. Rep. 429); Goulds v. Brophy, 42 Minn. 109 (43 N. W. 834, 6 L. R. A. 392). There is, however, in the latter case, an implied warranty that the article delivered or furnished complies with the description: 2 Mechem, Sales, § 1334.

*395The mill which plaintiff agreed to sell to the defendant was described as the “latest improved Huntington mill.” This was a specific article of a known and recognized description among persons dealing in mining machinery, and, if the mill furnished by the plaintiff conformed to the description and was of the kind and character ordered, there was no implied warranty that it would answer the purposes of the defendant, and the plaintiff is not liable for damages on that account. But if, as the defendant alleges and the testimony tended to show, the mill furnished was not the “latest improved,” but an old-style mill, there was a breach of the contract, for which the plaintiff is liable in damages: Steiger v. Fronhofer, 43 Or. 178 (72 Pac. 693); Lenz v. Blake, 44 Or. 569 (76 Pac. 356).

2. The fact that it made an effort to use and operate the mill was not a waiver of its right to damages for such breach: Norton v. Dreyfuss, 106 N. Y. 90 (12 N. E. 428); Northwest Cordage Co. v. Rice, 5 N. D. 432 (67 N. W. 298, 57 Am. St. Rep. 563).

3. The ordinary rule in a case of this kind is that the measure of damages is the difference in the value of the goods ordered and those furnished and accepted: 2 Mechem, Sales, § 1817; Dean Pump Works v. Astoria Iron Works, 40 Or. 83 (66 Pac. 605); Schumann v. Wager, 36 Or. 65 (58 Pac. 770).

4. But there may be special circumstances which will enhance the damages, such as if it was known to the seller that the article was intended for a particular purpose, in which case the vendee will be entitled to recover such damages as he may have sustained as the direct and proximate result of the breach: 2 Mechem, Sales, § 1771. Thus, in the case of a breach of a warranty on the sale of an engine to be used in elevating grain at a warehouse, the vendee may recover the expenses incurred in. putting up the engine, employing men and teams preparatory to the operation of the warehouse, and damages for the injury done by the elements to grain which he was unable to handle because of the insufficiency of the engine: Drake v. Sears, 8 Or. 209. And so in this case, the mill having been *396purchased by the defendant under the circumstances disclosed by the testimony, the plaintiff is liable for any loss defendant xnay have sustained as the natural and proximate result of the breach of the contract, if the mill furnished was not of the kind ordered. And, in estimating the damages, the expenses and labor incurred in testing the mill, freight paid on imperfect parts furnished by the plaintiff, but which could not be used, the cost of providing new parts necessary to make the mill conform to the contract, if plaintiff refused or neglected to supply them, loss of free gold while testing the mill, the wages paid the mine crew while idle on account of the defective mill, and the like, may be considered, but no loss incurred by reason of the delay of the plaintiff in shipping the mill at the time alleged to have been agreed upon. The contract expressly stipulated that plaintiff should not be liable for damages on that account.

5. There is also a provision in the contract that the plaintiff should not be responsible for repairs or alterations unless made with its written consent, nor liable for damages on account of delays caused by such repairs or alterations. This stipulation can only apply in ease plaintiff complied with its contract. If it did not furnish a mill of the kind and description specified in the contract, and defendant was damaged by reason thereof, it cannot shield itself from liability behind a stipulation in a contract with which it did not comply.

This, we think, substantially disposes of all the questions argued on this appeal. Judgment reversed and new trial ordered. • Reversed.