Fuller-Warren Co. v. Shurts

Pinney, I. The finding of facts is, we think, supported by the evidence; and the only question is whether, in view of the facts found and uncontradicted evidence, there had been a substantial performance of the contract on the part of the plain till. If not, the plaintiff could not recover. It was shown that the whole heating apparatus, including the pipes built in the walls, the registers, and the foundation in brick and cement, constituted the complete furnace^ or heating apparatus, described in the contract; and it was claimed that it could not be taken out without injury to the house, rendering repairs necessary, although the defendant had agreed to construct the apparatus “ so that pipes and boxes could be removed without disturbing the plaster or defacing the ceiling.” The substance of the transaction was that the plaintiff proposed to furnish a furnace or apparatus/br heating the defendants new house, and to guarantee that it should have a certain prescribed heating capacity. It was claimed that the furnace did not have the stipulated heating capacity, and that it would not heat a part of the upper portion of the house unless crowded with fuel to such a degree as to render the rooms on the lower floor uncomfortable, and that, owing to defective construction or disposition or arrangement of its parts, it generated gas to such an extent as to render the rooms uncomfortable and unwholesome. The plaintiff was notified of these defects, and made certain alterations in order to remedy them, but with the result that probably the heating capacity of the furnace may have been improved, but the difficulty in respect to the generation of gas was really increased, and to such an extent that [611] it was not possible to nse coal for fuel, and the house could be made comfortable only by the use of coke. In March, 1895, the plaintiff drew on the defendant for the amount claimed for the furnace, but the draft was returned unpaid, and on the 27th of the same month it was notified that the furnace was not accepted, and payment would not be made until the plaintiff put it in proper shape, and that the defendant felt that it would be better that the furnace be taken out entirely. The defects in the furnace had in the meantime been the subject of frequent complaints. It is not material to consider whether there was an implied warranty that the furnace or heating apparatus should be suitable for the purpose intended. The contract imports, in substance, an express undertaking to that effect; and the conduct of the plaintiff, in attempting to remove both of the defects complained of, shows that it so understood it. It was, in substance, a contract to furnish a furnace or apparatus suitable for heating the defendant’s house to a prescribed temperature by means of a column of hot air being drawn through the furnace and its pipes and registers into the several rooms of the house. A furnace so defective that, when properly used, the necessary heated column of air drawn through it for heating purposes is necessarily and unavoidably freighted with noxious coal gas, to such an extent as to render the rooms unwholesome and unsuitable for occupancy, is not, in any sense of the word, a furnace or apparatus fit or suitable for heating houses. No intelligent person would understand, from the language employed, that such a furnace or apparatus would meet the fair meaning of the parties, or that it was the subject in respect to which they were contracting. It cannot be fairly said that the defendant has got what she bargained for. The contract contains, in our judgment, what must be regarded as, in substance, a representation or assertion on the part of the plaintiff, amounting to an empress warranty, [612] that the furnace or apparatus specified in the plaintiff’s offer, which she accepted, would be suitable “for heating her [your] new house.” The language used forbids any possible inference that a furnace having the specified heating capacity, but with the use of which the generation and filling the house with noxious and unwholesome coal gas was an inseparable and necessary incident of its use, was the furnace or heating apparatus contracted for, and a consideration of the law in respect to implied warranties becomes unnecessary. It is a matter of common knowledge that furnaces in use in the Western country are constructed and designed for burning coal for fuel. We cannot indulge in any presumption that the furnace intended may have been one for burning coke. The defendant properly refused to accept the furnace, and desired that it be taken out entirely, and practically, so far as it was within her power, returned it or tendered it to the plaintiff. The plaintiff had stipulated for such right of removal in case it failed to properly heat the rooms. We do not think that the rule in Warder v. Fisher, 48 Wis. 338-341, is applicable, inasmuch as the defendant had done all reasonably within her power to put herself in a proper position to defeat the plaintiff’s claim on account of a want of substantial performance of the contract on .its part. She was not bound, in order to avail herself of her right of defense, to take out the furnace, and transport and deliver it to the manufacturers, at their place of business in Milwaukee. It was contemplated, if occasion for removing it occurred, that such duty was to rest upon the plaintiff. We hold, therefore, that'judgment was rightly given for the defendant. By the Court.— The judgment of the circuit court is affirmed.