Weeks v. Robert A. Johnson Co.

116 Wis. 105 | Wis. | 1902

Oassoday, C. J.

By the terms of the order the defendant was to have the “exclusive right to use” the machine in Milwaukee “for one year” by paying the railroad “fare for man to put up machine, if machine accepted; otherwise machine returned f. o. b. Milwaukee, Wis. Entire satisfaction guaranteed.” In response to that order the plaintiff stated 'that, before shipping the machine, he would like the defendant's “confirmation,” and that he did not “like the term ‘entire satisfaction’ ”; but there was no> refusal to ship the machine upon the terms expressed in the order. This is made .certain by the defendant’s letter of December 1, 1899, in reply, in which it is stated that: “When the machinery ar-rives and is thoroughly tested, and if it proves as represented, •we will be pleased to keep it, and pay for itand that if the ■plaintiff’s agent, Werner, had not made the defendant believe "that the plaintiff’s machine was the best, he probably would not have obtained the defendant’s “conditional order.” The -subsequent correspondence in no way changed the terms of the order. On the contrary, some of the letters and the con■duct of the parties tended to confirm the order as written. 'That order was a printed blank filled up in writing. There was.printed at the top and above the date: “Terms, net 30 -days. Goods shipped at buyer’s risk;” and on the side: “All -claims for deficiencies must be made within IS days after rer -ceipt of goods.” Such printed matter cannot be allowed to destroy or change the terms and conditions written in the order. 1 Greenl. Ev. (16th Ed.) § 278. See State ex rel. Blodgett v. Eagan, 115 Wis. 417, 91 N. W. 984, and cases there cited. It follows that the plaintiff shipped the machine upon the terms and conditions written in the order, to the effect that it was to be satisfactory to the defendant, and paid for if accepted by the defendant; otherwise returned f. o. h. Milwaukee. It never worked to the satisfaction of the defendant. The failure of the machine to fulfill the guaranty seems to have been recognized by the plaintiff when he tested the machine about the middle of January, 1900, and also in his letter of January 27, 1900.

2. But it is claimed that the defendant’s remedy for such failure to fulfill the guaranty was to return the machine f. o. b. Milwaukee, as prescribed in the contract; and that the defendant’s letter of April 10, 1900, rejecting the machine so received by the defendant on trial, and inclosing a “bill covering various items of expense, including chocolate and chocolate drops damaged by paint,” of which the defendant had previously notified the plaintiff, amounting in all to $114.04, and stating that upon receipt of that amount the defendant would return the machine, was, in legal effect, an acceptance of the machine. It appears, and is undisputed, that $21.46 of the items included in that bill was expended by the defendant, at the plaintiff’s request, in the purchase of material which was actually used in the manufacture of the rack or box mentioned, and which became a part of the machine. The statute declares:

“Every consignee of property shall have a lien thereon for any money advanced . . . hy him to or for the use of the person in whose name the shipment of such property is made, and for any money . . . received by such person for his use, unless he shall before advancing any such money . . . or before it is so received for his use, have notice that such person is not the actual owner thereof.” Sec. 3345, Stats. 1898.

Under this statute it is very obvious that the defendant, as-such consignee, had a lien for the moneys so advanced, and was entitled to retain the possession of the machine until such moneys were repaid or tendered. The mere fact that' the defendant’s letter of April 10, 1900, was sent to the plaintiff’s agent, John Werner, instead of the plaintiff, is-without significance. The order was given to Werner. The plaintiff testified that he had “turned the matter over to Wer-ner”; and also wrote the defendant, January 21, 1900, that, he had written Werner, and that he would he in Milwaukee-soon, and was “confident matters” would “be satisfactorily arranged”; and, after receiving a copy of the bill mentioned,, the plaintiff stated to the defendant, in effect, that he would' see Werner, who made the agreement with the defendant;: that the plaintiff had nothing to lose, and would look to Wer-ner for the claim. The mere fact that the defendant proposed to return the machine upon the receipt of a check for the whole hill was not a waiver of its lien for the particular-bill mentioned. Thus, it is stated in a standard work:

“Where a holder of goods detains them for two claims, as to one of which he has a lien and as to the other not, the-owner must tender the proper amount, unless the holder either expressly or by fair implication dispenses with the. necessity of a tender. Thus, where one who has a particular lien on property claims in addition thereto a general lien thereon, to which he is not entitled, and refuses to surrender the property to the owner on that account, he does not by so-doing waive the necessity of a tender of the amount secured by the particular lien.” 19 Am. & Eng. Encv. of Law (2d Ed.) 33.

The plaintiff made no such tender.

3. The plaintiff contends that the four extra screens were-of the value of $40, which more than counterbalanced the-lien claim. The machine was guarantied to have a capacity of from one to three thousand pounds per day. The plaintiff' suggested that the defendant ought to have more sieves,— four extra screens, — or tbe defendant could not turn out the quantity of work guarantied. The defendant informed the plaintiff, December 13, 1899, that the defendant wished “to run this machine to its capacity,” and that the plaintiff therefore had better make for the defendant four extra screens; and December 14, 1.899, the defendant notified the plaintiff to make the four extra screens, — one each, as per sample sent. The four screens were necessary in order to ascertain, by a proper test, whether the machine had the capacity guarantied. They constituted a part of the machine, and were of no use to any other machine or for any other purpose. It follows that there is no foundation for the extra charge for the four screens.

4. As the machine was never accepted, the defendant was not liable “to pay E. E. fare for man to put up machine,” as provided in the contract; and hence the plaintiff can take nothing by reason of that item alleged in the complaint. We find no error in the record.

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