128 Wis. 162 | Wis. | 1906
The case turns, first, on the meaning of the term “rated capacity” as used in the guaranty; second, on whether there was a breach of the agreement as to the “rated capacity” guaranteed.
The learned circuit court, it seems, decided rightly in holding that the term mentioned had no reference whatever to the subject matter of the defense, viz., the efficiency of the boiler, when set up with proper connections, to satisfactorily warm appellant’s house. The evidence shows quite conclusively, as the words in themselves pretty clearly indicate, that such term refers merely to the theoretical capacity of the boiler according to the customary way of rating such articles by dealers, to the trade. We shall not take time and space to discuss the evidence in detail. It is all one way, to the effect that heating boilers, generally, are put upon the market by dealers as having each a state.d capacity, the rating being based on the idea that a square foot of boiler and grate surface exposed to heat is convertible into a certain heating
So the verdict was properly directed for plaintiff, unless there was evidence to carry the question to the jury, of whether the boiler was in fact theoretically rated at 1,000 square feet of heating surface, as was supposed at the time the guaranty was made. As to that the burden was on defendant to prove the negative. He failed to produce any definite evidence in support thereof. There was evidence, as is indicated in the statement, that according to a method of measurement and computation applied and testified to, the appellant’s rated capacity was too high. But since the evidence was given by confessedly nonexpert witnesses, the subject was clearly within the field of expert inquiry, and there was undisputed credible expert evidence that such method was wrong, and entirely unlikely to show, with any reasonable degree of accuracy, the proper rating of the boiler; there was no proof whatever at the time the verdict was directed, supporting the claim of the appellant. On the other hand, there was considerable evidence of an affirmative character that the boiler had a legitimate rating in harmony with that for which it was sold; not evidence based on measurement and computation, it is true, but on evidence of one familiar with boilers to the effect that the grate surface and size of the boiler indicated that the rating given to it by respondent was correct. There was no evidence upon which the jury could have found in favor of the appellant.
By the Court. — The judgment is affirmed.
