Bayer Steam Soot Blower Co. v. W. G. Cornell Co.

]\Ir. Chief Justice Smyth delivered the opinion of the Court: Plaintiff, Bayer Steam Soot Blower Company, sued to recover the contract: price of two patented soot blowers for cleaning the soot and ashes from between the tubes of a steam boiler. There were affidavits of merit on behalf of plaintiff and affidavits in defense by the defendant, W. C. Cornell Company. The parties agreed that, if the trial court was of the opinion that the affidavits in defense wore sufficient, the court should enter judgment for the defendant, reserving to plaintiff the right to appeal. Another stipulation says that certain letters which passed between tbe plaintiff and defendant might be con [148] sidercd as a part of the record. There was judgment for the defendant. Do the defendant’s affidavits, considered in connection with the letters, present a good defense ? That is the single question here for decision. It appears therefrom that in October, 1918, plaintiff sold to the defendant two blowers to be installed by the defendant on boilers in the building of the Bureau of Engraving and Printing on these conditions: That “said blowers were to be used on trial for a period of thirty days, and if at the. expiration of that period the defendant would not be satisfied with the said blowers that they were to be returned to the plaintiff at its expense.” They were put in position about January 8, 1914-, and after two weeks’ trial were rejected by the. Government Engineer in charge as unfit to do the work for which they wore intended. Thereupon defendant by letter notified the plaintiff of the rejection, suggested that it send a man to Washington to “demonstrate” that the blowers would work, and concluded thus: “Kindly let us know by wire just what we can expect; otherwise we will have to take those two out and return them to you.” Later on plaintiff sent certain shields which it claimed would remedy the defect, but they were not placed in position because the Government Engineer, other experts, and the defendant’s general manager, decided that they would not be effective. On April 6, 1914, defendant requested shipping directions from the plaintiff and said to it that upon receiving them it would return the blowers “at once.” This was repeated in substance on May 2 and July 15. The necessity for shipping directions was due to the circumstance that the plaintiff had two places of business, — one at St. Louis and another at Philadelphia. It is also disclosed that defendant was anxious to have the blowers do the work for which they were purchased, because they were cheaper than the blowers it was obliged to put in their place. The court found in effect that the blowers had been given the test required by the contract, that they failed to perform the work contemplated by the parties, that in consequence they wore not satisfactory to the defendant, and hence that it was not obliged to pay for them. Appellant contends that the failure of the blowers to work satisfactorily was due to [149] certain of tlie cleaning doors of the boilers being “off center,” but in answer to this it is shown without contradiction that they failed to function where the doors were on center. The next point urged by appellant is that it Avas the duty of the defendant to give the bloAvers a fair trial, and it cites many authorities, both texts and decisions, to support the contention. AVe agree; but think that the record shoAVs indubitably that such a test was accorded; and where that appears the judgment of the purchaser is final, and not subject to review by the courts. This is so because plaintiff agreed that it should be so Avhon it said that if the blowers Avere not satisfactory to the defendant it might reject them. (Rondinella v. Southern R. Co. 33 App. D. C. 65; Silsby Mfg. Co. v. Chico, 11 Sawy. 183, 24 Fed. 893; McClure Bros. v. Briggs, 58 Vt. 82, 56 Am. Rep. 557, 2 Atl. 583; Gray v. Central R. Co. 11 Hun, 70.) It is asserted by appellant that under the contract the defendant, and not the Government .Engineer, was the one to be satisfied. If this be conceded, and it is, the appellant is not advantaged, because the affidavit of defendant’s general manager recites the test made, indicates with clearness Avherein the bloAvers were defective, and asserts that they did not do the work required. True, he does not say specifically that they were unsatisfactory; none the less the (‘.fleet of his affidavit is that they Avere; it admits of no other fair inference. But if it did, the implicit, if not the explicit, finding of the court below, the trier of fact, would be conclusive upon the subject. Appellant’s authorities, holding that Avliere a piece of machinery sold upon an agreement that it is to be satisfactory to A, the obligation to pay for it cannot be escaped by showing that it Avas not satisfactory to B, are not pertinent. Lockwood Mfg. Co. v. Mason Regulator Co. 183 Mass. 25, 66 N. E. 420, stressed by the appellant both in its brief and oral argument, is one of them. It is said therein that the only question in the case before the court was Avhether the words, “in a satisfactory manner,” meant “in a manner satisfactory to a reasonable person or in a manner satisfactory to Leavitt (city engineer), however unreasonable he might be, provided he acted in good faith,” and it was held that the Avords, “in a satisfactory manner,” did not impose [150] upon tlie seller tlie obligation to satisfy tlie engineer. There is no question of that character here; for, as we have disclosed, the blowers were not rejected because they were unsatisfactory to the Government Engineer, albeit they were, but because they were not fit for the Work for which they wore sold, and hence not satisfactory to the purchaser. Next it is argued that plaintiff was entitled to have the blowers tried for the full thirty days. There is nothing to show that they were not. The plaintiff was notified after two weeks’ trial, which ended January 22, that they were rejected by the Government Engineer. "Whether that ended the trial, is not clear. On February 13 the defendant wrote that it had nv moved the blowers, but, when, the writer does not say, nor does anybody else. That was thirty five days after the trial period liad commenced. However, the blowers had been tried sufficiently to show that they were incapable of doing the work required. No one says that a further trial would have helped them, and therefore it would have been useless. The law never requires an idle thing to be done. In Williams Mfg. Co. v. Standard Brass Co. 173 Mass. 356, 53 N. E. 862, the purchaser was given sixty days in which to try the article purchased, but he rejected it before the end of the period. The court, speaking through Mr. Justice Holmes, said: “As soon as the defendant was convinced that the work was unsatisfactory it had a right to stop it. The provision of sixty days’ trial was the undertaking of the plaintiff for the defendant’s advantage to insure it of whatever knowledge it wanted in order to decide.” To the same effect see Cleaver v. Bullock, 111 Pa. 441, 4 Atl. 852. Appellant cites Huber Mfg. Co. v. H. Crawford & Sons, 175 Fed. 219, and Gaar v. Halverson, 128 Iowa, 603, 105 N. W. 108, but we do not think they are in point. In the Huber Case, it was said: “A ten days’ trial was to decide, and neither party could stop short of this, if it was demanded by the other.” No demand for further trial was made here. In the Goar Case it was said that the purchaser was entitled if he desired to extend the trial through the full period given in the contract, — in that case six days. This is far from holding that he was required to continue the trial during the full period if in a shorter time he [151] found the device so defective that even the seller could not make it work. Was the plaintiff notified within thirty days that the blowers were unsatisfactory to the defendant? The thirty days commenced to run when the blowers were properly placed in position to do the work intended. (Cook v. Flint, 2 Ind. App. 41, 28 N. E. 200.) This was about January 8; and on January 22 plaintiff was notified that the government had rejected them as unfit, and that unless plaintiff wired that it could prove the capacity of the blowers the defendant would have to take them out and return them. No wire was received, and defendant’s conditional notice became absolute. This notice, that the blowers were defective and could not be used for the purpose for which they had been purchased, was in effect a declaration that they were unsatisfactory to the purchaser, and must have been so understood by the plaintiff. To say otherwise would be absurd. Nor is this changed by the fact that subsequently defendant permitted the plaintiff to make efforts to remedy the defect. “Waiver of defense does not result * * * from use for the purpose of testing the article or while efforts are, being made to remedy defects.” (35 Cyc. 242; see also Crabtree v. Potts, 108 Ill. App. 627.) The final contention of the appellant is that defendant should have returned the blowers or made an unconditional offer to do so. We think it did the latter when it requested shipping directions and stated that upon receiving them it would return the blowers at once. The contract does not by its terms fix the time when the return was to be made. Therefore if made within a reasonable time it would be sufficient; whether it was or not was a question for the trial judge (Boothby v. Scales, 27 Wis. 626), and we have no right to review his decision upon that point. But if we had, we would concur in it. For the foregoing reasons the judgment of the lower court was right, and it is therefore affirmed, with costs. Affirmed.