Lewistown Foundry & Machine Co. v. Hartford Stone Co.
Lewistown Foundry & Machine Co. v. Hartford Stone Co.
Opinion of the Court
It is contended, on the part of • the defendant in error, that the measure of damages in a case of this character is furnished by paragraph 6 of Section 8449, General Code, which reads as follows:
“The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events from the breach of warranty.”
The averments of the cross-petition of the de
The evidence offered on the part of the defendant shows that this mill was installed in July, 1910; that the plant was not put in operation until the early part of December of that year; that the quarry was not then in condition to .produce anything like the quantity of stone that could be handled through this mill, and that at times the defendant was compelled to stop the operation of the mill, until it could get enough rock to make 25, 35 or 40 tons. In that connection, Mr. Clark, the general superintendent of the plant of the defendant company, testified:
“No. Our quarry was small and we would quarry a day and let the plant lay until we could get up enough to make 25, 30 or 35 or 40 tons, you know. Then we would grind that up the next day. We didn’t have the quarry big enough to mine that as fast as we would use it.”
In April of the following year a steam shovel was added to the quarry equipment, and at that time five additional washers were added. According to the testimony of Mr. Clark, the mill then had a capacity of 140 tons per day, but this witness further testified that they were averaging only 40
“Probably the fault of the quarry.
“Q. How do you mean ? A. Not getting stone in for the mill.
“Q. Well then you say that is one of the reasons why the tonnage went low? A. Yes, sir.
“Q. That wouldn’t be on account of the machine then would it? A. No.
“Q. That would be because there wouldn’t be enough product? A. Yes, sir.
“Q. Are there any other reasons? A. None other.”
The record, however, does contain other testimony by this witness and other witnesses, that the mill, by reason of its inefficiency, did occasion delay in the operation of the plant, but even if that fact were conceded there was no evidence offered by which the jury might determine what part of the delay was occasioned by the inability to procure rock from the quarry and what part of the delay was occasioned by the mill, nor is there any evidence contained in the record that would furnish the jury any basis whatever to calculate the damages suffered by the defendant on account of such delay, or by reason of the increased cost of producing sand because of the defects in the mill. On the contrary, the evidence offered by the defendant shows that the plant was never operated to the full capacity of the mill, but that the daily output of sand varied from 40 to 90 tons. How a mill that has a daily capacity of 140 tons
The defendant in its answer avers that the mill was defective, but it appears from the evidence that this claim is based upon the defects in that part of the mill known as the washers.
On the 23d day of June of that year the defendant wrote the plaintiff as follows:
“We do not question the capacity of your chaser mill; the controversy is entirely with reference to your washers.”
About the time the steam shovel was placed in the quarry, some question did arise between the parties to this contract as to the capacity of this - mill. At that time plaintiff furnished a new set of washers, the cost of which is included in the account sued upon. It is the claim of the defendant that these washers were furnished under and as a part of the contract, and for the purpose of increasing the capacity of the mill, so that it would
The claim of the plaintiff is for damages for breach of warranty contained in the original contract of sale. By the finding of the jury, only part of these washers were included in that contract, and this record is absolutely barren of evidence to show which set of washers is complained of, or, if both are defective, what proportion of damages sustained by defendant, if any, was occasioned by the defect in washers covered by the contract or warranty, and what proportion, if any, was occasioned by the washers not included in the original contract and not covered by the warranty.
There is, therefore, a hopeless confusion in the evidence offered by the defendant, not only as to •the delays occasioned by the defect in the mill and the delays occasioned by the capacity of the quarry, but also in relation to the delays occasioned by the defects in the machinery furnished under the original contract and covered by the warranty, and the defects in the machinery furnished by the plaintiff to the defendant later, under a separate contract, and not covered by the warranty. Still more important is the fact that there is an entire absence of any evidence to establish the amount of damages, or any basis for the calculation of the amount of damages that the defendant suffered
A verdict including other and further damages would necessarily have been based, as to amount, upon conjecture merely, and would not have been sustained by any evidence.
It is not the duty of a trial court to give in charge to the jury any abstract principles of law not applicable to the proofs in the case. On the-contrary, it would have been error for the court to do so. (The P., C. & St. L. Ry. Co. v. Fleming, 30 Ohio St., 480; Coal Company v. Estievenard, 53 Ohio St., 43.)
Aside from these considerations, however, it is not the privilege of the purchaser to retain defective machinery for an unlimited time, after the discovery of the defect, and recover, as damages for breach of warranty, the daily loss in the operation of the entire plant occasioned by the defect or insufficiency of this unit in the factory. If that were the law then an article of trifling value might delay the operation of large and- expensive machinery and increase the cost per unit of the articles manufactured in that factory for days, months and years, until the total damages arising therefrom would aggregate the value of the whole plant.
It was the duty of the purchaser, under the circumstances and conditions appearing from the evidence in this case, to act with reasonable promptness upon the discovery of the defect in the ma
The judgment of the court of appeals is reversed, and the judgment of common pleas court affirmed. Cause remanded to the common pleas court for execution.
Judgment of the court of appeals reversed, and that of the common pleas affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.