Trego v. Roosevelt Mining Co.

SiebeckeR, J. The questions submitted in the special verdict show that the court held that plaintiff’s action was to recover the balance of the purchase price for the roaster plant specified in the contract of the parties, and that defendant counterclaimed damages for a breach of the agreement that the plant, when completed, would “handle twenty-five tons of mill concentrates from said second parties’ mill, providing the same do not carry more than thirty per cent, iron and four per cent, calcium carbonate, in each twenty-four hours of steady running, and that the finished product from the process will not contain more than four per cent, iron.'” The trial court correctly held that this agreement amounted to a warranty that the completed roaster would handle, in each twenty-four hours of its operation, the specified quantity of the quality of mill concentrates described in the contract, and produce a finished product which would not contain more than four per cent, of iron. The phraseology of this agreement imports, in substance, that the roaster would so operate as to handle this quantity of raw ore in a reasonably proper manner to accomplish the purpose of the roast [319] ing process. If the plant was so defective in its operation as to fail to properly handle the ore and as to waste it, then the plant cannot he said to comply with the express warranty. Fuller-Warren Co. v. Shurts, 95 Wis. 606, 70 N. W. 683. The parties do not question hut that plaintiff furnished a “Trego” roasting plant of the kind called for hy the contract. It appears that this appliance was one reasonably well known in the mining business and well known to the parties when they contracted. The defendant alleges and claims that the roaster did not comply with the warranty, and seeks to recover damages hy way of counterclaim to plaintiff’s demand for breach of this express warranty. The issue thus raised was litigated and submitted for determination to the jury by a special verdict. The jury found that the roaster furnished fulfilled the warranty, and judgment was awarded plaintiff of a recovery of the balance due on the contract. ISTumerous exceptions to the reception and rejection of evidence are alleged by defendant for reversal of the judgment. As appears in the foregoing statement of the facts, one of the interrogatories propounded to plaintiff while testifying in his own behalf was whether the plant was completed so as to fulfil all of the guaranties. The court permitted an answer to this question over defendant’s objection. Defendant’s cross-examination of the witness disclosed that plaintiff had no direct knowledge on the subject and relied on information obtained from others. The court denied defendant’s motion to strike out the evidence, upon the ground that the effect of it^ reception could not thereby be removed and that the evidence was harmless. We find no justification in the bases assigned for this ruling. The witness had shown himself to be incompetent by his want of knowledge, even if the interrogatory were a proper one. But it appears that the inquiry called for his opinion upon an ultimate issue in the case which was sharply contested and which could only be resolved by a jury. Johnson v. Highland, 124 Wis. 597, 102 [320] N. W. 1085. Later in the trial defendant propounded like questions to witnesses called by it, and the court upon objection ruled against them. These contradictory rulings would naturally tend to give emphasis and weight to plaintiff’s evidence on the subject and render its reception prejudicial to-the defendant’s case. We are constrained to hold that this constitutes reversible error in the case. Another exception urged by defendant is to the evidence of assays of ore made by the witness Pennington. It is claimed that the samples of ore furnished him were not sufficiently identified and that the written reports of his assays-were not the originals. So far as the record discloses, these reports contained a statement of the memoranda made by him as he proceeded in his work and contained original records or written statements of the result of his examinations. The evidence, however, is subject to the other objection urged, in that it is not shown that, with one exception, the samples of ores furnished to him or that the samples tested by him were from the Roosevelt mine, and this one does not conform to the kind and quality of ore specified in the warranty and which plaintiff guaranteed that the mill would handle. Under these circumstances the plaintiff’s assays-were not competent as evidence tending to show that the roaster complied with the warranty, and they should not have been received for this purpose. Defendant claimed that plaintiff had failed to comply with the contract by not furnishing a ten-horse power electric motor. The plaintiff testified that only a seven and one-half horse power motor had been furnished, that this was of sufficient power, and was what the parties understood he should furnish. This matter was not fully explained by other evidence’ and neither party insisted on a determination of it by either the court or the jury. Under this state of the record no question is presented for review. Since the errors above noted call for a new trial, we need [321] not consider other exceptions to rulings on evidence which are not likely to arise upon another trial. By fhe Gowrt. — Judgment reversed, and the cause rer manded for a new trial.