279 Pa. 138 | Pa. | 1924
Opinion by
Defendant appeals from a judgment recovered in an action in which damages were sought for breach of warranty in the sale of a bottle-making machine.
Plaintiff was equipping a plant to manufacture glass milk bottles and defendant sold to it a machine for that purpose under a written contract, in form a proposal, the material parts of which, so far as this controversy is concerned, are: “We propose to furnish you the following equipment: 1 Model PC type Geneva movement machine,......This machine is to be suitable for making a general line of wide mouth bottles from 2 to 64 oz. capacity. Accommodates 6 blank and 6 blow moulds mounted on the same table alternately, has a maximum working speed of 20 per minute......arranged for operation in conjunction with Miller Glass Engineering Co.’s automatic feeding device.”
At the same time plaintiff purchased this machine, it also bought from the Miller Glass Engineering Company one of its automatic feeding devices mentioned in the contract. In general terms, the function of the feeder was to draw molten glass from a furnace and deposit it in the mould on the machine, which fashioned it into a bottle. The machine was useless without a feeder. The defendant, Miller, was the inventor of this feeding device, and owned 990 out of 1,050 shares of the stock of the Miller Glass Engineering Company which held the patents for the feeder. The engineering company and Miller had their place of business together, and the same plant, agents and employees. The machine and the feeder were installed in plaintiff’s plant simultaneously and by the same workmen. When the time came to operate the machine, it would not produce bottles in
Defendant complains that the case was tried and submitted to the jury on a wrong assumption, that plaintiff’s proofs were that the two machines working together would not produce the bottles and that the court at the close of the testimony ruled that his only responsibility was for the machine and not for the feeder, that, while this was the ruling of the court, there was no proof that the cause of the failure lay in the machine; that the court erred in charging in effect that, although defendant was liable only for the machine, he could be held for defects in either the machine or the feeder; appellant further complains that there was error in admitting evidence of an oral warranty in preliminary negotiations for the sale of the machine differing from the written one.
We think defendant’s undertaking was much broader than he assumes it to be. He was not alone to furnish the bottle-making machine, but, in the language of the contract, such a machine “arranged for operation in conjunction with Miller Glass Engineering Company’s automatic feeding device.” The agreement was that, so arranged, “It is to be suitable for making a general line of wide mouth bottles.” Defendant stipulated that the two appliances were together to be a working unit
On the trial, plaintiff was unable to indicate specific defects in the machine and established its case by showing that the machine would not manufacture the bottles. It proved by the testimony of defendant himself that there was no fault in the feeder and argues from this that the imperfections must have been in the machine, although particular deficiencies could not be pointed out. Defendant’s contention is that he was in no way responsible for the action of the feeder and that in order to entitle plaintiff to recover, it had to show that the fault was with the machine. With this we cannot agree. It was defendant’s undertaking that the machine should be suitable to make a general line of wide mouth bottles, but not to do this in itself, but when “arranged for operation in conjunction with” the feeder. While appellant’s position is that the case was tried on a wrong theory, that plaintiff’s proofs were to the effect that the two machines working together were not a success, whereas the court ruled after the evidence was closed that defendant was liable only for the performance of the machine, our view is if this ruling was made as
Defendant by his proofs sought to establish that the failure to produce the bottles was not due to the machine, b.ut to the plaintiff having furnished improper facilities and molten glass not in condition to make the bottles, and in the court below contended, as he does before us, that he was responsible only for the machine,
Another objection raised by appellant to the conduct of the trial is, that the court admitted testimony of an alleged oral guaranty which preceded the written contract of purchase. This testimony was that the agent of defendant in the preliminary negotiations for the purchase of the machine and the feeder said: “This PC Geneva Movement Machine, working in conjunction with the Miller Feeder, would produce, he would guarantee it to produce, at the rate of twenty quart milk jars per minute.” When this testimony was received, a motion was made to strike out the words “he would guarantee it to produce at the rate of twenty quart milk jars per minute,” the reason assigned being that the written warranty constituted the contract between the parties. The court declined to strike out the evidence at that time, but said the application to eliminate it could be renewed later if the circumstances as they developed called for such action. It was also testified by the same witness that plaintiff executed the contract because of this statement and guaranty, and a similar motion to strike out this statement was made and there was a like ruling. No further application by the defendant to strike the testimony from the record was made. In answer to a request for charge by appellant, the court said to the jury: “I am asked to say to you that the only warranty made by the defendant is as contained in the writings constituting the order for the machinery furnished by the defendant. That is what I have said to you several times already.” Instead of making this request for charge, if the defendant had asked the court to strike out the testimony, it doubtless would have done so, as the answer to the request was tantamount to so doing. Having contented himself with the request and not having made the formal motion to strike out, appellant cannot now complain that the court did not adopt the latter alternative. What was done in effect eradicated the testi
We discover no error in the record which would justify entering judgment for defendant or the granting of a new trial.
The assignments of error are all overruled and the judgment is affirmed.