8 N.W.2d 294 | Wis. | 1943
The jury found, (1) that defendant had made known to plaintiff that it wanted and required refrigeration equipment capable of freezing and caring for from four hundred thousand to five hundred thousand pounds of smelt during the April, 1941, smelt run and would want equipment capable of producing temperatures of thirty degrees below zero in the sharp freezer and zero in the storage rooms; (2) that plaintiff represented its equipment would be fit for the purposes required; (3) that the equipment failed to perform the services required; and (4) that defendant relied upon the plaintiff's representations that the equipment installed would perform the services required. The jury found that there was no failure properly to install refrigeration equipment.
Defendant's damages upon its counterclaim were apportioned as follows: (a) For improper installation, $15.75; (b) for damages for smelt received and spoiled, $468; (c) for expenses of handling spoiled smelt, $60.
Upon motions after verdict, the court changed the answers to subdivision (b) of the damage question from $468 to $2,458.50. Judgment was entered on May 23, 1942, for $1,094.25, the amount of its counterclaim in excess of the *468 balance due upon the conditional sales contract, and $179.57 costs and disbursements. On March 20, 1941, plaintiff, a dealer in refrigeration machinery, executed a written contract with defendant, owner of a cold-storage plant, by the terms of which plaintiff agreed to sell and to install in defendant's plant certain refrigeration equipment to be paid for by instalments. Defendant corporation had for many years engaged in the manufacture and sale of patent medicines. Until about a year prior to the making of the contract defendant had never been engaged in the cold-storage business. It then installed refrigeration equipment of low capacity in its plant. On January or February of 1941 defendant was approached by an association of fishermen who offered defendant a contract to freeze and store their smelt catch for 1941, estimated to run between four hundred thousand and five hundred thousand pounds of smelt. Plaintiff held its officers and employees out as trained refrigeration engineers, and had advised defendant prior to the time of sale, exacting a fee for such advice. Defendant, through its manager, communicated with plaintiff, disclosed its negotiations with the producers of the smelt, and what would be required of defendant. Plaintiff was asked for an assurance that defendant's plant, after installation of the purchased machinery, could handle the refrigeration of a smelt run up to four hundred thousand to five hundred thousand pounds. (The usual period of a smelt run is ten days.) Defendant produced testimony, and the jury found, that this *469 assurance was specifically given. The written contract for the sale of the equipment contains the following provisions which are claimed to be material in this case:
"Guarantees
"We guarantee first-class material and workmanship for one year from the date when the equipment is first put in operation. In the event that material furnished by us shall prove to have been defective at the time it was furnished, natural wear and tear, misuse and accident excepted, we agree to repair or furnish a duplicate of any such part free on board cars at factory within such period.
"No liability shall attach to us, however, for damages or delays caused by defects, beyond making such repairs or furnishing duplicate parts, nor shall we be liable for any defective material repaired or replaced without our consent."
The schedule descriptive of the machine sold reads in part:
"1 — 6x6 Ammonia machine, used but guaranteed to be in good operating condition running at 277 R.P.M. and producing 5.88 tons of refrigeration at 5 pounds suction pressure and 155 pounds discharge pressure requiring 14.8 B. H. P."
The contract also contains the following provision:
"This document contains the entire proposed agreement between the parties hereto. It is understood that there are no agreements, promises, or understandings other than those incorporated in this proposal in printed or written form."
The machine was to be completely installed by April 15, 1941. Demand for the use of the plant to freeze and store fish began to come in earlier than this, however, and on the 11th, 12th, and 13th of April, one hundred fifty-eight thousand pounds of fish came into the plant. The plant was unable to handle this quantity of fish and seventy-eight thousand two hundred pounds smelt spoiled. Defendant was compelled to pay the owners of this fish at the rate of three cents per pound *470 and the cost of hauling the fish away from the plant. There is evidence that plaintiff consented to receiving fish prior to April 15th, although there is a conflict as to the amount of fish that plaintiff consented to receive. While this conflict was not submitted to the jury it must be considered resolved against plaintiff by operation of sec. 270.28, Stats.
Defendant's counterclaim was the only matter contested upon the trial. It is for damages, (1) for breach of warranty; and (2) for fraud. The case was tried and decided upon a theory that there was a breach of implied warranty of fitness for a disclosed purpose. Sec.
Defendant claims that this is an instance where a buyer has disclosed the purpose for which the machinery is required, relied upon the seller's skill or judgment, and therefore, by operation of law, has the benefit of an implied warranty that the goods are reasonably fit for the purpose disclosed. Were it not for considerations hereinafter to be discussed we should have some doubt whether the term "fitness," as that term is used in the statute, in connection with implied warranties is applicable to the present situation. We would suppose that a warranty of fitness has to do with the intrinsic qualities and characteristics of the property sold. As, for example, inBird Son v. Guarantee Construction Co. (1st Cir.) 295 Fed. 451, where it was held that there was an implied warranty that certain carrier equipment which was the subject of a sale *471
would be reasonably fit for conveying products in a plant without damaging them. In all cases that we have had a chance to examine, fitness for a purpose has to do with the design, materials, and other qualities of the thing sold. Here, the term "fitness" is sought to be extended to the capacity of plaintiff's machine in combination with refrigeration already on defendant's premises to handle a specified quantity of fish during the fishing season. It is not denied that the machine sold here was well built, intrinsically capable of refrigerating fish, and of producing the tonnage of refrigeration warranted by the written contract. The claim is rather that it did not sufficiently augment the capacity of defendant's plant. We do not find it necessary to do more than to express these doubts because, in any event, we are not dealing here with an implied warranty. Plaintiff made an express oral representation that the equipment sold, when used in combination with defendant's existing plant, would refrigerate a specified amount of a specified product within the specified time. Nothing was left to implication. If this had been a case of implied warranty, evidence concerning it would not be in violation of the parol-evidence rule because the warranty is created by law and not by the parties' agreement. Bekkevold v. Potts,
For the foregoing reasons, we are of the view, (1) that the facts of the case disclose no implied warranty; and (2) that under the parol-evidence rule the express oral warranty sought to be proved is inadmissible by reason of the parol-evidence rule.
The second cause of action on the counterclaim is based upon fraud. We discover no evidence of scienter. The case was evidently not tried upon the theory of fraud. It follows that judgment must be reversed and defendant's counterclaim dismissed.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss defendant's counterclaim and to grant judgment to plaintiff for the balance due upon the contract of sale.