60 Minn. 401 | Minn. | 1895
The general nature of this triangular contest is stated in the opinion on a former appeal. 54 Minn. 543, 56 N. W. 165. A second trial having been had before the court, without a jury, findings of fact were made and judgment ordered for different specified amounts in favor of the plaintiff and defendant Hood, and for these amounts equal and co-ordinate liens were adjudged upon the real property in question. Thereupon the defendants Hurd Refrigerator Company and Hood separately moved for a new trial, and on the refusal of the court to grant their motions both appealed.
The assignments of error made by counsel for appellant first named are directed to rulings made by the court below when hearing the evidence, and, as a consideration of one of these assignments compels a reversal, we shall not go further into the case. One of the material issues made by the pleadings was as to the kind, quality, and grade of the bricks which plaintiff, the manufacturer, agreed to sell and deliver to the contractor Hood, and which he had agreed to purchase and receive, and whether plaintiff had complied on its part with the requirements of the contract in this respect, or had furnished and delivered a much inferior or worthless article; and it must be borne in mind that these bricks were to be shipped in carload lots, for immediate use in the walls of buildings then in process of erection for defendant company. Hood, in his answer to the complaint, alleged that he had contracted for bricks of the first quality, and in all respects fit and suitable for use in such buildings; that, as the bricks were received, they appeared to be of the quality agreed upon; that he relied upon such appearance; that he was un
There was no finding that this was a sale by sample, — and of this no complaint is made by an assignment of error, — so that we shall consider the contract, as we did on the former appeal, as an ex-ecutory sale, by the manufacturer, of a specific article of a well-recognized kind or description in the market, namely, a good quality of bricks of the grade known as “common.” There was an implied condition of this contract that the bricks should conform to the description, be of good material, and well made, according to the description, but none that they would answer the purpose for which they were purchased. As to this the rule of caveat emptor applies.
On the trial there was considerable testimony offered and received, and some offered and rejected, with respect to hidden or latent defects in the bricks, but finally the court struck out all evidence theretofore received as admissible, under the allegations concerning hidden or latent defects, each of the defendants duly excepting. At the time of the ruling the court gave no reason for it, so far as is shown by the record before us, and we are at a loss to understand why the ruling was made. Counsel for respondent seeks to sustain it by urging that such testimony was inadmissible under the pleadings, because the allegation in the answer of the Hurd Company was that the hidden defect of which it complained was in the “construction” of the bricks, while all the evidence brought under the ruling showed, if anything, that the defect was in the clay used by plaintiff. If this was a fair statement of the allegations of the answer mentioned, — and we do not think it is, — the argument possesses no merit, for the word “construction” referred to the making of the bricks. They could be “constructed” or made, so as to be defective, by using poor or worthless clay, as well as by using defective machinery, or by the employment of incompetent workmen. Again, counsel’s criticism of this answer does not reach that made by defendant Hood. No other suggestion is made by counsel as a ground for sustaining the ruling, and we have none in mind. If the bricks were not what plaintiff agreed to deliver, did not conform to the conditions of its contract as to kind, quality, or grade, and this was-
We feel compelled, in conclusion, to allude to certain italicized language found in the brief of counsel for appellant Hurd Company, which was designed to and does reflect severely upon the trial court, and not only to express our surprise that it should appear as part of an argument presented to this court, but to say, further, that it is unworthy of counsel, uncalled for, and that on all occasions counsel must not forget to be respectful to the courts.
Orders reversed.