141 F. 551 | 8th Cir. | 1905
after stating the case as above, delivered! the opinion of the court.
If the plaintiff below was entitled to a directed verdict because it-was guilty of no breach of any warranty, as its counsel assert, the alleged errors in the refusals of the court to receive evidence, and to-submit instructions relative to the amount of damages of which the defendant's'complain, were not prejudicial, and will require no consid
It is now contended, however, that the warranty was that the pump “could be operated for the usual lifetime of such machinery, and that it would last whatever the usual lifetime of such machinery would be,” and that, as it did not do so, the contract was broken. In other words, the claim is that the description of capacity was a warranty of performance, efficiency, and endurance. Counsel declare that they rely upon McGowan v. American Pressed Tan Bark Co., 121 U. S. 575, 602, 604, 7 Sup. Ct. 1315, 30 L. Ed. 1027, to support this position. In that case the defendants, who were manufacturers, made a written agreement to construct for the plaintiff a machine for the purpose of pressing bark. They described the various parts of the machine in the contract and expressly agreed' (1) that the entire machine should be constructed “in a workmanlike manner and of first-class material”; (2) that it should “have a sufficient capacity to do the requisite work”; (3) that it could be “used up to fifteen hundred tons pressure”; and (4) that they guarantied “the whole.” The Supreme Court held that by this agreement they guarantied that the machine could be used up to 1,500 tons pressure, not once only, but during the time such a machine would ordinarily wear under prudent management. Now, the question in the case at bar is whether the word “capacity,” in the contract before us, was a mere description of the size, or of the room in the pump, made for the purpose of identifying it, as was the name “Worthington,” or is a warranty of all its essential qualities, including size, space, design, strength, and endurance. The McGowan Case does not rule this question, either directly or inferentially, because the agreement in that case contains three express warranties that are not found in the case at bar: (1) That the machine should be constructed “in a workmanlike manner and of first-class material”; (2) that it could “be used up to 1,500 tons pressure”; and (3) that the manufacturers guarantied “the whole.” If the word “size” were substituted for the word “capacity” in that contract, these three warranties would compe?
The word “capacity” has many meanings. It means size, space, or compass. It means power or force. It means intellectual capability, both to receive and to perform. But its primary significance is passive. It is the ability to receive. Its secondary meaning is active. It is the ability to do or to resist. Century Dictionary, “Capacity.” The seating capacity of a hall is its size, its ability to permit people to be seated within it. The capacity of a dynamo electric machine is its ability to produce power. In which sense did the parties to this contract use this word? The vendor was not the manufacturer, but was to become the purchaser from the manufacturer and the seller to the mines company of this pump, which the latter had selected, and all this the purchaser knew. While the pump was a machine that it was necessary for the manufacturer to build pursuant to the order of the plaintiff, it was still a definite and standard article of a character presumably known, from the name of its manufacturer, to the purchaser, who selected it from the three pumps that were offered to it, as well as to the dealer who procured it. A manufacturer knows, or ought to know, the design, materials, and workmanship of the machines he produces, while a trader in them, who has no connection with their manufacture, is chargeable'with no such knowledge. For this reason the contracts of sale made by manufacturers are construed more strongly against them than are those which are made by dealers. Thus, in Cosgrove v. Bennett, 32 Minn. 371, 374, 20 N. W. 359, a manufacturer who undertook to construct a mill in first-class shape, which should have a capacity of 100 barrels per 24 hours, was held to have agreed that this mill would ordinarily turn out that amount of flour under proper management. The contract in that case, however, differs from the one before us, not only in the fact that the seller was the'manufacturer, but also in the fact that he covenanted to construct the mill “in first-class shape.”
A contract should have a natural and rational construction, if possible, one in accord with the course of action usually pursued by those of ordinary prudence under like circumstances, rather than one that is unnatural, unreasonable, and contrary to the customary course of action of men in situations similar to that of the contracting parties. It is not reasonable to suppose that a trader who is selling to a customer by description a machine of known manufacture, which the latter selects and the former purchases or orders for him, would guaranty that the article purchased would endure and do the work of similar machines as long as articles of that character ordinarily last. Such an obligation is out of proportion to the consideration which the dealer obtains from the sale, out of the ordinary course of business, and it should not be imposed upon and enforced against him unless it is clearly expressed in his contract, or may be fairly implied from it.
The contract in this case is evidenced by letters. It included a motor manufactured by the plaintiff, and a Worthington pump made by the owner of the Worthington works and patterns. After the plaintiff
It is said that an implied warranty arose from the sale, to the effect that the pump should be fit and proper for the pumping of water in the shaft of a mine, and that this covenant was broken. If the pump was unfit to do the work which machines of that nature ordinarily perform, that condition arose from latent defects in the material of which it was constructed, or in the workmanship bestowed upon it, of which the plaintiff had no notice. The electric company secured and delivered the article of the known manufacture which the mines company had selected, and which was described in the contract. A manufacturer is charged by the law with notice of latent defects in the design, materials, and construction of the machines he makes which unfit them to perform the ordinary work of such articles, because he fur
Again, the parties to this sale put their contract in writing, and embodied in their writing an express warranty of one of the qualities of the pump essential to its fitness for the general uses for which such pumps are designed. Where parties have deliberately put their engagements in writing in such terms as import plain legal obligations, it is conclusively'presumed that the whole engagement of the parties and the manner and extent of their undertaking were embodied in the writing. McKinley v. Williams, 74 Fed. 94, 101, 20 C. C. A. 312, 319. The contract of these parties was of this character. Its subject was the pump that was sold, and the expressed warranty of one of its qualities, of its size, which is contained in the description, raises the conclusive implication that other qualities requisite tq its fitness for the general use of such pumps were not warranted. An express warranty of one of the qualities of an article excludes an implied warranty of other qualities of a similar nature. The exaction or acceptance by the purchaser of personal property of a warranty of one quality raises a conclusive presumption that he did not desire, or could not secure, or the parties agreed that he should not have, the warranty of others of the same character. Benjamin on Sales (7th Am. Ed.) 672; Carleton V. Lombard, Ayres & Co., 72 Hun, 254, 260, 25 N. Y. Supp. 570; Jackson v. Langston, 61 Ga. 392; Baldwin v. Van Deusen, 37 N. Y. 487, 489; Deming v. Foster, 42 N. H. 165, 175; De Witt v. Berry, 134 U. S. 306, 313, 10 Sup. Ct. 536, 33 L. Ed. 896; Seitz v. Brewers’, etc., Machine Co., 141 U. S. 510, 517, 12 Sup. Ct. 46, 35 L. Ed. 837; Buckstaff v. Russell & Co., 79 Fed. 611, 615, 25 C. C. A. 129, 133; International Pavement Co. v. Smith, etc., Machine Co., 17 Mo. App. 264, 269; Chandler v. Thompson (C. C.) 30 Fed. 38, 46; J. I. Case Plow Works v. Niles & Scott Co., 90 Wis. 590, 604, 63. N. W. 1013; McGraw v. Fletcher, 35 Mich. 104, 106; Mullain v. Thomas, 43 Conn. 252, 254. There was no implied warranty of the fitness of the pump to do the work for which pumps of its nature are designed, and there was no breach of the express warranty contained in the contract.