Sliter v. Creek View Cheese Factory

Vinje, J. The evidence is quite satisfactory that defendant had consented to the substitution of plaintiffs in place of the Sharpies Separator Company as the owner of the' contract and the parties who were to install the machinery. Its defense in that respect is therefore not well taken. On the other issues litigated the verdict is well sustained by the evidence. It appears that it was not till October. 30, 1918, that plaintiffs offered to install. On the 17th of that month, after repeated failures by plaintiffs to install as promised, defendant wrote them that'if they did not install by the 21st the order would, be canceled. On the 23d of that month defendant purchased a separator from another party and refused to permit plaintiffs to install on the 30th when they finally had all the fittings neces 642 sary for installation. It is undisputed that defendant caused the separator to be hauled from Boyd to its factory some time after August 28, 1918, and the tank and some piping were hauled there sometime after September 8th. Since the defendant received part of the machinery, the trial court evidently reached the conclusion that such receipt constituted an acceptance of the machinery and that title thereto passed to the defendant and it became liable for the purchase price. In so holding we think the court erred. The defendant bought an installed' plant to be operated as a unit in its cheese factory. It required skilled labor to install it, and such labor was included in the purchase price of $525. In such case the purchaser of an installed plant does not accept the contract as fulfilled even pro tanto by receiving and retaining parts of machinery that are to go into the completed plant. It is received by the purchaser and held for installation by the seller, and the contract is not performed till installation is complete, as ^ stipulated in the order, or until complete installation is waived. Nor does such receipt of parts of a plant operate to transfer title thereto in the vendee in the absence of express agreements that it shall do so. Plaintiffs seek to invoke the rule that, in the sale of specific goods in a deliverable state, property in the goods passes to the vendee when the contract is made, unless it is clear title is intended tó be transferred at another time. This case does not fall within that rule because defendant did not buy specific goods in a deliverable state, but a plant that was to be constructed out of certain specified articles and also out of other articles, such as piping, that was not specified so as to be capable of identification. Pipe of any reputable make of the required size would answer the terms of the contract. Defendant never waived or accepted what it bought, namely, a completely installed plant consisting of the specified articles'and such others as complete installation required. But even if the articles bought are regarded as specific goods, something was required to 643 be done to them by the seller before the contract of sale was performed. They were to be installed. In such case property does not pass till the stipulated thing is done. Sub. 2, sec. 1684t—19, Stats.; J. B. Bradford P. Co. v. Hacker, 162 Wis. 335, 156 N. W. 140. Since it is found that plaintiffs unreasonably delayed installation through no fault of defendant, it had a right to rescind the contract as it did by giving reasonable notice of its intention to rescind in case installation was not made by the specified time. Davis v. Hubbard, 41 Wis. 408; School Dist. v. Hayne, 46 Wis. 511, 1 N. W. 170; Jung B. Co. v. Konrad, 137 Wis. 107, 118 N. W. 548. By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.