Dwight Bros. Paper Co. v. Western Paper Co.

90 N.W. 444, 114 Wis. 414, 1902 Wisc. LEXIS 157

• Court: Wisconsin Supreme Court
• Decided: May 13, 1902
• Status: Published

Opinion

WiNsuow, J.

It is undisputed that the paper in question was sold to the defendant under a warranty that it was to be equal in strength and quality to paper of the same description which defendant was then using, and which had been previously sold to the defendant by the same agent when he was acting as agent for Niedecken & Co. This court has held that, where there is an express warranty of quality of goods sold, no warranty of fitness for a particular use is implied, but that the idea that any additional warranty is expected or intended is repelled by the fact that the parties have chosen to make their own warranty in express terms. J. I. Case P. Works v. Niles & Scott Co. 90 Wis. 590, 63 N. W. 1013. In this case, therefore, there was no implied warranty of fitness of the paper sold for the special use intended, although that purpose was known to the vendor; and the controlling question in the ease was not whether the paper had the necessary quality and strength' to pass through the defendant’s machine successfully, but whether it had the •quality and strength warranted, i. e., quality and strength equal to that .of the Niedecken paper, which the defendant was then using. The case, however, was evidently tried upon the idea that there was an implied warranty of fitness in addition to the express warranty. The allegations of the counterclaim which are supposed to set forth breaches of warranty are plainly framed upon this supposition, the defendant’s evidence upon the subject of breach of warranty is largely directed to the point that the paper sold had not ■strength enough to pass through the machines successfully, and the third question of the special verdict is directed to the same point. Now, had it been shown that the Niedecken paper had sufficient strength to pass through the machines successfully, evidence that the paper in question would not do so would have been material and relevant to the issue, provided there was sufficient allegation of breach in the counterclaim to found it on; but, in the absence of any proof as to the strength of the Niedeeken paper, the fact that the paper in question was too weak to pass through the machines successfully was absolutely immaterial and proved nothing.. We have examined the evidence returned carefully, and find that there was absolutely no evidence showing that the Nie-decken paper would pass through the machines successfully, or in any respect with better' results than the paper in question. This was, in fact, the keystone of this branch of the defendant’s case. All that the defendant could claim under the warranty as to strength was that the paper in question did not come up to the standard of the Niedeeken paper in its ability 1» pass through the machines, and, there being no. proof showing what that standard was, there was no foundation for any special damages resulting from insufficiency in-strength.

These considerations dispose of the main question in the case. The principal assignment of error made by the defendant is that the court ruled out certain questions by which it attempted to show that when it began to use the paper in question, in June, the amount of its output was largely reduced, and the percentage of waste increased, by reason of frequent breaks in the paper resulting from its weakness. It seems to be true that, had there been either an express or implied warranty of fitness of the paper for the special use intended, there might have been a recovery of consequential damages naturally and probably resulting from its failure to fulfill such warranty, in addition to the ordinary damages consisting of the differences in value, there being evidence-tending to show that paper of this kind was not ordinarily obtainable in the market. Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214, 66 N. W. 119; Cockburn v. Ashland L. Co. 54 Wis. 619, 12 N. W. 49; 2 Suth. Dam. §§ 671, 672. But in the state of the proof the answers to these questions would not tend to show any breach of the warranty as. to strength which was actually made. The warranty was. that tbe paper should have strength- equal to that of the Nie-decken paper which was in use in February. There was no showing that the Niedecken paper was in use in June prior to the attempt to use the paper in question; hence the comparison in output or waste proposed by the question was absolutely immaterial, and the testimony was properly rejected.

There is another contention which requires notice. While, as stated, there was no proof given or offered tending to show that the paper in question was deficient in ability to pass through the machines, as compared with the Niedecken paper, there was some slight proof that it was inferior in some other respects, as compared with that paper;'and thus it may be claimed that in these respects a breach of the express warranty was proven, and ordinary damages, consisting of the difference in value between the actual value and the value which it would have possessed had it been as warranted, were recoverable. The jury found that the paper in question was actually worth $2.30 per 100 pounds. There was no proof as to what it would have been worth if it had been of the quality warranted, save the proof of the agreed price which was paid, i. e., $2.65 per 100 pounds. The court evidently allowed the sum of thirty-five cents- per hundred upon the whole amount sold as damages, and deducted the same from the plaintiff’s admitted claim, and rendered judgment for the plaintiff for the balance. It is claimed by the defendant that there was no evidence to base the finding of $2.30 per 100 upon, and that the finding is a pure guess. The defendant’s answer alleges that the paper was not worth to exceed $1.10 per 100, while its witnesses claim that it was not worth to exceed its value as paper stock, to wit, forty-five to fifty cents per 100. The plaintiff’s witnesses claim that it was worth the full price paid for it, i. e., $2.65 per 100; and the defendant’s contention is that the jury had no testimony on which it could base a finding that it was worth $2.30 per 100. The principle is well understood that a jury cannot base a verdict upon mere conjecture or guess, without some evidence, and the question is not without some difficulty. There was, however, other evidence in the case which b'ore legitimately on the question of value, and tends strongly to prove that the defendant’s claim that it was only worth what it would bring as paper stock was not credible. The paper was what is known as “No. 2 print paper.” It was shown without dispute that it could be cut into flat sheets, and used for circulars, tablets, and dodgers. The defendant’s manager testified that it was all used in defendant’s business; part of it was run through the machine to fill orders, and most of it was cut up on a sheet cutter, and perforated for common shelf paper. Apparently, it had all been sold. What amount was realized on it does not appear, but the conclusion that it proved to bé worth considerably more than its value for paper stock is irresistible. There was testimony, also, that the cheapest No. 2 print paper was worth $2.50 per 100 pounds. Doubtless the jury took all these facts into consideration, as they were manifestly entitled to- do. The question of the value of real or personal property, or of services rendered, is one upon which there is always apt to be a wide difference of opinion, especially where it appears that there is little or no market for the same, as some of the testimony tends to- show was the case here. Had the case stood upon direct testimony merely, — upon one side that the value was $2.65, and upon the other side that it was but forty-five cents, — the question would be more serious; but wheu the other circumstances named are taken into account, and the defendant, while showing conclusively that the value exceeded the estimate of its witnesses, does not choose to further enlighten the jury as to the amount thereof, we do not think it can now complain because the jury has fixed a sum to which no witness directly testified.

No other questions are raised of sufficient importance to require discussion. There appears to have been no prejudicial error in the trial.

By the Court.- — Judgment affirmed.