Neck v. Marquette Cement Manufacturing Co.

Barnes, J. The appellant insists that there was no competent evidence to-show that the cement did not conform to the specifications of the contracts of sale. As to the second shipment this contention is untenable. Professor Johnson of the State University, an expert on cement construction, made a test of samples of cement taken from such shipment and testified that it did not meet the requirements of the specifications. It is true that in making his test he departed slightly from the methods recommended by the American Society of Civil Engineers, but he stated that the departure was immaterial, and we find no evidence to contradict this statement. The first carload of cement had all been used before the controversy arose, so that no test could be made of it. There was evidence tending to show that it had been properly mixed and laid and that the results obtained were so poor that considerable of it had to be replaced. Professor Johnson also examined the floors and blocks made from it and testified in substance from the examination made and from the' evidence given as to how the cement construction had been made that the first carload did not come up to the standard required by the specifications. The appellant claims that this evidence was incompetent and that the only way in which the quality of the cement could be determined was by making the test provided for. The contract did not so provide. The evidence offered certainly tended to show that this cement did not conform to tire standard specifications for Portland cement adopted by the American Society for Testing Materials, with methods recommended by the American Society of Engineers. In the absence of a provision in the contract making the test the sole evidence of the inferiority [301] of the cement, the fact might be established by other evidence. Ganson v. Madigan, 13 Wis. 67. What the effect of such a provision in the contract would be is not involved and is not decided. By the Court. — Judgment affirmed.