A. B. Wheeler & Son Co. v. Edenhofer

133 N.W. 22, 147 Wis. 270, 1911 Wisc. LEXIS 228

Opinion

WiNSlow, C. J.

This is an action to' foreclose a mechanic’s lien upon defendants’ house for the purchase price of a furnace. There is absolutely no dispute as to the facts, and the only question presented is whether there was a breach of the warranty under which the furnace was sold. The contract of sale was oral. The furnace was what is called a combination fnrnace, that is, one in which either coal or wood may be nsed as fuel, and it was warranted to properly heat the defendants’ house in the coldest weather. As matter of fact, it would not properly heat the house in the coldest weather when fired with wood only, except by means of excessive firing and attention. By using coal or coke as fuel it will, however, heat the house in accordance with the warranty.

Under these circumstances, was there any breach of the warranty ? The trial court decided this question in the negative, and with that decision this court agrees. There was no express undertaking that the furnace would heat the house in the coldest weather when wood alone was used as fuel, but only that it would properly heat the house at that time. The fact is undisputed that it will do so when the proper fuel is used. It is considered that it was the duty of the defendants to use that fuel.

By the Court. — Judgment affirmed.