B. F. Sturtevant Co. v. Adolph Leitelt Iron Works

Brooke, J. (after stating the facts). The question is not a new one in this State. It has arisen several times under contracts containing varying provisions. The latest case upon the subject is Power Specialty Co. v. Michigan Power Co., 190 Mich. 699 (157 N. W. 408), where all the authorities are collected and discussed. That the question is-not without difficulty is indicated by the fact that both parties in the case at bar rely upon Power Specialty Co. v. Michigan Power Co., supra. Plaintiff’s counsel defines his position as follows: “We, therefore, contend that the undisputed testimony discloses that the engineers who drew the specifications expressly inserted a clause requiring the manufacturer to install; that such a provision is customary, because only those specially skilled in the work can do it successfully; that there are companies who make a specialty of installing such systems, but none shown to be in Michigan; that the installation was only incidental to the main contract, because only costing 4.6 per cent, thereof. Such facts were most relevant to the issue, and should have been found.” It is the claim of plaintiff that the testimony introduced on its behalf brings this case within that class of cases recognized in Browning v. City of Waycross, 233 U. S. 16 (34 Sup. Ct. 578), where a provision by the seller to install is essential to a sale “because of — 556 — some intrinsic or peculiar quality or inherent complexity of the article.” It is the claim of the defendant that the testimony, which was all introduced by the plaintiff, shows the exact converse of this proposition. Upon this point John H. Kassa, the sales engineer of the plaintiff who made the contract in controversy here, testified as follows: “Q. The fact was you both tried to sell to the Leitelt Iron Works for them to install, did you not? “A. Yes. “The Court: What is the answer? “A. That is correct. “Q. And the Leitelt Iron Works did not want to take up that end of it? “A. That is true. "Q. By their installing, it means their assuming all responsibility of the men and any injuries that might develop to the men, etc.? “A. Yes, sir. “Q. Your company, if you can get a local concern to install, you desire to make a sale on that basis, if you can, do you not? “A. We will if we can. “Q. And if you can’t do it that way, you make the sale the other way, and your company install? “A. Yes.” Harry W. Paige, western manager for plaintiff, testified in part as follows: “Q. State whether or not in this particular apparatus manufactured by the B. F. Sturtevant Company there is anything peculiar that requires, in order to make a sale of it, that the B. F. Sturtevant Company should erect it. “A. There is; yes. “Q. Explain to us in a general way in your own language, what that is and why it is. “A. Well, the proper operation of the apparatus depends upon a correct installation and alignment. This is a special class of apparatus, and in this particular case the fan and the motor were being connected up — 557 — together and would have to be in alignment for correct operation. Usually the people who bid_ on this class of work are not familiar with the handling and lining up of such apparatus, and the manufacturer is required to at least furnish a superintendent and in most cases completely install on the foundation this portion of the apparatus. “Q. In your experience in making sales in Southern Michigan, in Grand Rapids, state whether or not you find it necessary in order to make the sale to agree to install it. “A. We do. “Q. State whether or not it would be possible for a person who had no previous experience with the Sturtevant apparatus to install it correctly? “A. Well, it is barely possible; I would not say it was impossible.” On cross-examination the same witness testified: “Q. Isn’t it a fact, Mr. Paige, that very often the apparatus of the Sturtevant Company is sold and delivered to the purchaser and erected by him? “A. Occasionally, yes. “Q. So that there is no special ability required other than good mechanical ability and good electrical ability to erect this ventilating system, is there? “A. Yes; I would say there was. “Q. What is it? “A. Experience. “Q. Mechanical ability is experience. A mechanic that has had experience in this sort of mechanical work? “A. Certainly; any mechanic who has had experience in this particular sort of mechanical work can erect it. ‘IQ. One who has put in ventilating systems of other companies or who.has done work of that nature would be able to follow the drawings and put up this apparatus, would he not? “A. If he had been competent with the other firm, yes. “Q. In other words, it is not and does not require, to make a successful job, the presence of your own mechanics and your own superintendent, does it? — 558 — “A. I could not answer that question without qualifying it. “Q. People and customers do buy your apparatus and erect it themselves, do they not? “A. Sometimes, yes. “Q. And so far as you know, the operation of that apparatus, after it is erected, is just as successful as the apparatus erected by the B. F. Sturtevant Company, is it not? “A. Not always. “Q- Isn’t it as a general rule as successfully operated as the B. F. Sturtevant apparatus that is put up by their own men? “A. No, sir. “Q. Did you ever have any apparatus installed by the Sturtevant Company itself that did not operate properly? “A. Yes, sir. • “Q. That has also occurred with apparatus installed [by other people? “A. Yes, sir. “Q. So that the rule works both ways, doesn’t it? “A. It does. “Q. Do you know of any other apparatus, ventilating apparatus of your company, that has been installed in Grand Rapids by other people than the Sturtevant Company? “A. Yes; I do. “Q. Where? “A. Hotel Pantlind. “Q. Who installed that? “A. If I recollect, Hanley-Casey Mechanical Equipment Company installed it.” Arthur W. Boylston, an engineer connected with the Nearing & Henson Company, of Wilmette, 111., a man of considerable experience in the installation of ventilating apparatus, testified; “Q. State whether or not as the result of your experience it would be necessary in a job of this size, in order to do the work properly, that the apparatus should be installed by some person or persons who are familiar with installing ventilating apparatus. — 559 — “A. The specific apparatus called for in these specifications most certainly should be installed by some one who had had considerable experience with the installation of similar apparatus, and of course preferably by the same manufacturer.” On cross-examination he gave the following testimony: “Q. Do you know of any other company installing apparatus similar to that installed here, the apparatus manufactured by the Sturtevant Company by any other concern? “A. There is the Hanley-Casey Company, and I was identified with the L. H. Prentiss Company of Chicago. “Q. Have they installed apparatus similar to this Sturtevant apparatus? “A. Yes, sir. “The Court: And who else? By similar you mean Sturtevant apparatus? “Mr. Dunham: I mean similar, yes, to the Sturtevant apparatus. “A. Assuming you mean the same type? “The Court: Made by the same company. “Mr. Dunham: Made by the same company and the same ..type. “A. The L. H. Prentiss Company of Chicago; there is Kehm Bros. & Co. of Chicago. Might I refresh my memory? I have a list of the contractors, which comprises all contractors of heating and ventilating apparatus in Chicago. “Q. Yes. “A. Baker-Smith— “Mr. Dunham: Where are they? “A. These are all Chicago contractors. Davis Construction Company. You have Hanley & Casey. And General Fire Extinguisher Company. F. W. Lamb. Phillips & Gadskow. W. A. Pope. Thomas & Smith. Do you want some more? * * * “Q. Then there is nothing about this particular work in the South High School, in the installation of it, but what these firms that you have named, and some of the others you know of, could do the work; they could do the work? — 560 — “A. They' could have done the work. “Q. And from your experience, so far as that is concerned, any concern in the State of Michigan, Detroit, or Grand Rapids, equally well versed in the installation of that kind of apparatus, could also install it, could they not? “A. Of course we must say equally well equipped with the same workings. “Q. I mean any contracting firm who has done that kind of installing and has experience in that kind of business, the fact that they live in Chicago or Michigan would not make any difference, would it? “A. If the workmen were of the same ability it would not make any difference where they lived.” Everett S. Wood, head of plaintiff’s adjustment and credit department, after testifying that in order to effect sales of their apparatus, of the size and complexity of the apparatus in controversy in this case, it was necessary that the plaintiff company should either install the apparatus themselves or superintend its installation, said upon cross-examination: “Q. Then would you say that an engineer technically trained and a mechanic technically trained with reference to blowpipe apparatus and ventilating apparatus would be able to successfully install any of this ventilating apparatus, including Sturtevant? “A. Yes, indeed.” From all the testimony contained in the record we have reached the conclusion that while the apparatus, the subject of the contract in this case, was somewhat complicated, it had no such “intrinsic or peculiar quality or inherent complexity” as made it necessary for the manufacturer to agree to install in order to effect sales generally; indeed, the contrary appears from the testimony of plaintiff’s witnesses. Many persons named by those witnesses purchase plaintiff’s apparatus and install them and make a business of installing them. The fact that defendant did not show affirmatively that there was a firm or individual in — 561 — the State of Michigan capable of making the installation (apparently relied upon by plaintiff), is, we think, of no consequence. The record does show that the apparatus of the American Blower Company was installed in place of that which the plaintiff contracted to itself install. The record further shows that it is the claim of plaintiff that its apparatus is “equal to” the apparatus of the American Blower Company. Upon a consideration of the whole record we conclude that the sale of plaintiff’s apparatus did not depend upon its agreement to install because of any “intrinsic or peculiar quality or inherent complexity,” and that therefore the contract was not within the exception described in section 8 of Act No. 310, Pub. Acts 1907, as amended by later and supplementary acts. The judgment is affirmed. Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.