Seitz v. Brewers' Refrigerating Mach Company

Action by the Brewers' Refrigerating Machine Company against Michael Seitz. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error. Judgment affirmed.

STATEMENT BY FULLER, C. J. This was an action brought by the brewers' Refrigerating Machine Company against Michael Seitz upon the following contract: 'This agreement, made this 11th day of January, A. D. 1879, between the Brewers' Refrigerating Machine Company of Alexandria, Va., party of the first part, and Michael Seitz, of Brooklyn, N. Y., party of the second part, witnesseth: That the party of the first part hereby agrees and contracts to supply the party of the second part with a No. 2 size refrigerating machine, as constructed by the said party of the first part, by the 15th day of March next, or as soon thereafter as possible, the machine to be delivered at the depot or wharf in Philadelphia, Penn., and to be put up and put in operation in the brewery of the said party of the second part at 258-264 Maujer street, at Brooklyn, E. D., N. Y., under the superintendence of a competent man furnished by the said party of the first part. The party of the second part hereby agrees and contracts to pay to the said party of the first part for said machine the sum of nine thousand four hundred and fifty dollars ($9,450.00) in manner as follows, namely: Four thousand seven hundred and twenty-five dollars ($4,725.00) on the day when the machine is put in operation at the brewery of the said party of the second part, and the balance of four thousand seven hundred and twenty-five dollars ($4,725) in three equal installments; that is to say, one thousand five hundred and seventy-five dollars ($1,575.00) for each installment, payable, respectively, in one, (1,) two, (2,) and three (3) months after the day when the machine is put in operation at the brewery of the said party of the second part, for which installments the said party of the second part agrees and contracts to give his notes on the day last mentioned.'

The complaint, after setting forth the execution of the contract on the 11th of January, A. D. 1879, alleged compliance therewith in every respect by the plaintiff, and breach of the promise to pay the purchase price. The defendant stated in his answer, among other things, 'that the machine placed in defendant's brewery was worthless, and incapable of operating to produce the results represented by plaintiff to this defendant as an inducement to enter into the aforesaid agreement; that said machine has not been accepted by this defendant, nor operated, or attempted to be operated, by defendant, his agents, employes, nor any other person acting by or under his authority, and did not pass out of the control of the plaintiff; nor has the said machine been used by him in his said brewery, because said machine was worthless, and incapable of serving any useful purpose therein.' And defendant also averred, by way of counter-claim, that he had sustained damages by reason of false and fraudulent representations by plaintiff as to what the machine would accomplish, in reliance upon which he had permitted his brewery to be subjected to the action of said machine, and suffered loss accordingly.

Upon the trial before the circuit judge and a jury, plaintiff proved that a No. 2 size refrigerating machine, as constructed by the Brewers' Refrigerating Machine Company, was supplied defendant, and put up and put in operation in his brewery by it in accordance with the terms of the contract. Defendant thereupon asked to amend his answer, 'to set up that defendant entered into that contract by reason of fraudulent representations on the part of this company.' The amendment was allowed, and was in substance that plaintiff represented that the machine was capable of cooling certain rooms in the brewery which had been examined by plaintiff; but the machine, when set up and operated, was not so capable, and failed to perform the work for which, upon the representations of the plaintiff, the machine had been contracted for by defendant; that defendant contracted to purchase the machine upon the guaranty by plaintiff to defendant that it would cool certain rooms, and it was upon that guaranty alone that defendant entered into the contract; that defendant entered into the contract upon the representations of the plaintiff to the effect that the No. 2 machine referred to in the contract set forth in the complaint would cool and was capable of cooling a space of 150,000 cubic feet of air continuously to a temperature sufficiently low for the purpose of brewing or manufacturing beer in the defendant's brewery or premises, that is to say, to a temperature in the neighborhood of 40x Fahrenheit; and that the plaintiff knew, at and before the time when the contract was made, that the representations made to the defendant were false and unfounded, and knew that the said No. 2 machine was not capable of performing the work which plaintiff represented it as being capable of performing, and knew that the machine would be worthless to the defendant for the purposes for which defendant contracted for it and intended to use it.

Evidence on defendant's behalf was then admitted, tending to show that, prior to the execution of the contract, plaintiff's agents had represented that the machine would cool 150,000 cubic feet to 40x Fahrenheit; that defendant had been cooling his brewery with ice, and wished the machine to cool the rooms to about the same extent; and that the machine did not cool the rooms as desired. On cross-examination of the defendant's agent, it appeared that on January 13, 1879, he wrote to the secretary of the refrigerating company: 'In speaking to Mr. M. Seitz to-day he said that your agreement was very unsatisfactory to him; in fact, that before he would get the machine that he wanted a written guaranty from you that you would cool his building, which you have seen, to 3 1/2 R., and keep it at that all the time; otherwise he would not have the machine, as he would have no use for it, as he would have to put himself to great expense and great risk at the same time.' To which plaintiff responded, January 20th: 'I regret to hear that Mr. Seitz feels dissatisfaction with the contract made with him. The guaranty he now asks for in addition it would not be proper for us to give, as Mr. Seitz himself will see on further reflection, we think. The maintenance of a certain temperature in his rooms is not solely dependent upon our machines; in fact, there are a great many other things entirely beyond the control of the machine which influence this temperature. The mode of working the rooms, the water used for washing, the fermentation, and many other things might be mentioned in this connection as matters which we cannot control, and which nevertheless are most important considerations in the maintenance of a given temperature. We are confident, from the experience with the Portner machine during last summer and fall, that the machine sold to Mr. Seitz will not only give him the desired low temperature, but will, in addition, give him what he never before had in the warmer months, namely, pure and dry air. The machine we are building for him is in many respects far superior (aside from size) to the Portner machine, and when he has had it a year we believe he would not part with it for any money, if he could not replace it. That we must decline to guaranty what Mr. Seitz asks for is simply for the reasons stated. There are too many side considerations entirely beyond the control of the machines. We would add that we have not in any instance been asked for such a guaranty as a condition of sale, but that all the parties to whom we have sold bought on our representations, and what they have seen and heard of the working of the Portner machine.' On January 21, 1879, defendant's agent telegraphed plaintiff: 'Will you defend any infringement suits against Mr. Seitz for using your machine?' and on January 23, 1879, wrote: 'The machine sold to Mr. M. Seitz is all right, and can be sent at any time that it is ready.' On the 16th of March he again wrote plaintiff; 'Mr. Seitz would like to have you to commence at once putting up his machine.' The defendant having rested, the court, on motion, directed a verdict for the plaintiff for the amount claimed. The circuit judge remarked to the jury that the only defense worthy of consideration was that the machine was sold to the defendant under fraudulent representations by the plaintiff's agents, but that there was no evidence of fraud whatever in the case; that there was evidence to show that the machine did not work satisfactorily, and the jury were doubtless authorized to infer that it did not have the capacity of cooling 150,000 cubic feet to the degree stated, but that there was a written contract in the case, which contained no warranty, and, consequently, if the machine did not fulfill the expectations of the defendant, or if it did not fulfill verbal representations made at the time the contract was entered into, nevertheless defendant had no defense; that there was no evidence that false or fraudulent representations had been made; that the machine had been built and put up pursuant to the written contract; and that the defendant could not be permitted, upon the general theory that the machine was not a satisfactory article, to defeat the plaintiff from recovery. The verdict having been rendered as directed, and judgment entered thereon, the cause was brought here on writ of error.

Esek Cowen, for plaintiff in error.

[Argument of Counsel from pages 514-516 intentionally omitted]

John H. V. Arnold, for defendant in error.

FULLER, C. J.