Kidder Press Co. v. J. V. Reed & Co.

117 S.W. 950, 133 Ky. 350, 1909 Ky. LEXIS 178

• Court: Court of Appeals of Kentucky
• Decided: April 14, 1909
• Status: Published

Opinion

Opinion op the Court by

Wm. Rogers Clay, Commissioner

Affirming.

The plaintiff, Kidder Press Company, instituted this action against J. Y. Eeed to recover the sum.of $3,262, the purchase price of a printing press. The defendant, by answer, set up the contract hereinafter noted, and denied any liability for the purchase price. It also set up a counterclaim of $343.46. At the conclusion of -all the evidence the court peremptorily ■ instructed the jury to find against plaintiff on its claim as set out-,in its petition, and for defendant on his counterclaim. Judgment was entered accordingly, and the Kidder Press Company -appeals.

The contract entered into between the parties is as follows: “Gibbs-Brower Company, General Agents American and European Machinery. 150 Nassau Street, New York. Kidder Press Company hereby agrees to sell at the sum of $2,925.00 net to J. V. Reed & Company, Louisville, Ky., one of its No. 3 Roll Feed Bed and Platen Presses for two colors with multiple feed ¡and cut, and fountain both sides, to be delivered boxed on cars at Louisville, about the 1st of March, 1906, warranted free from defects of material and manufacture and with the following attachments: Slitting attachment, $55.00; 7 sets slitters at $5.00, $35.00; 3 crosswise perforators, at $135.00, $105.00; rewinder for narrow rolls, $250.00. Freight and erector expenses, $200.00. J. V. Reed & Company hereby agrees to buy said property as above specified and to pay therefor after satisfactory trial, cash $2,925.00, or its equivalent. Deferred payments, if any, bearing 6 per cent, interest and exchange on New York. Said machine is guaranteed to .do a good quality of printing and to produce rolls of narrow width, hard and even wound. The perforating attachment is to have in addition to crosswise perforating knives attachments for cutting cross. Register is guaranteed to be satisfactory :and to accomplish the desired results. Sample inclosed to be changed in size to 3 in. x 2 in. making it possible to print nine (9) wrappers, the long way of the press and to print six (6) in width, size of press inside of chase measures 27 in. x 13 in. Attachments working three (3) times each to each impression of the press, making it possible to cut cross X each three (3) inches in each strip. As this X is to register with wrapping machine, register must be satisfactory to accomplish the desired result. If said machine is not satisfactory it is to be returned free of expense to the purchaser. Main shaft, diameter-inches. Speed-turns per. minute. To belt from below with motor connections. Tbe seller to send erector to superintend erection of said machinery, for erector’s time, hotel bills, and all traveling expenses. The purchaser agrees to insure said machinery fully, immediately upon its receipt. The purchaser agrees to report to the seller in writing all defects of material or manufacture, if any, in the above machinery Avi'thin thirty days after receipt. of siaane, and that the seller shall not be liable for any defect's not so reported within said period. Upon payment of the purchase price, in cash, Kidder Press Company agrees to execute and deliver a good and sufficient bill of sale of the above-described property, but such sale is made subject to the condition that said machine shall never be used in the manufacture of sales slips or counter check books by said purchaser or successors in interest and the title hereto is taken subject to said restriction, of which notice shall be given upon transfer. Kidder Press Company, Per Gibbs & Brower Company, General Agent. J. V. Reed & Company, By J. V. Reed. Louisville, Ky., November 27, 1905.”

On the margin, written in red ink, is the following: “Note. — It is agreed that the whole agreement between the parties is contained in the contract, and that all representations and warranties, unless reduced to writing and inserted herein, are void. ’ ’

For some time prior to the date of the above contract, J. Y. Reed, a printer of LouisAulle, Ky., .was engaged in furnishing'to the Colgan Gum Company, of that city, a large quantity of .hand-made wrappers to be used in wrapping its tolu. In the latter part of the year 1905, ¡appellant’s agent, L. M. Cain, came to appellee for the purpose of inducing him to permit the Kidder Press Company to construct and furnish him a machine to be used in furnishing wrappers in rolls. As an inducement to the appellee’s consenting to purchase the machine, appellant’s agent agreed to go with appellee’s representative and help him make a contract with the Colgan Gfum Company. They succeeded in getting lan order from the latter company for 50,000,000 wrappers. Thereupon the above contract was entered into. The machine, itself, was in the nature of an experiment. Therefore, the contract provided that if the machine was not satisfactory it was to be returned, free of expense to the purchaser. The contract provided that appellant should deliver the press to appellee at Louisville, Ky., on March 1, 1906. The machine did not arrive until April 23, 1906. A representative of appellant came to Louisville at that time to direct and adjust the machine. He having failed to adjust the machine, the company then sent its chief expert, W. C. Williams, who arrived in Louisville May 22, 1906. He claims that he put the machine in good running order and then left on May 24, 1906. After-wards other experts were sent by appellant. Many changes and alterations were made. On July 7th appellant requested a settlement for the press, but was refused on the ground that the machine was not satisfactory. On July 14th appellee wrote appellant as follows: “The press sent us has never delivered satisfactory work, and we are inclined to believe that it, never will as it is now constructed. Some parts needed, which your erector promised to have sent to us at once, have never arrived, and as a result we have done nothing since he left the city.” On Decernber 26, 1906, appellee wrote appellant, in part as follows: “We are very much surprised in not hearing further from you in regard to your numerous appointments in regard to your press that we have in our possession. As you know this press has never come up to our requirements, and is not at all satisfactory to us, and as we seem unable to hear from you on the subject, we are considering another press for our needs.” After that appellant’s.general agent was sent to Louisville twice, once in February, 1907, and the next time in May following. During this time appellant attempted to sell appellee another machine at the price of $7,500. An offer to this effect was made in a. letter from appellant to -appellee, dated February 6, 1907. On February 27, 1907, appellee wrote Gibbs-Brower & Company, appellant’s general agents, to the effect that the press was furnishing an output of only about 40 per cent, of the wrappers promised. On May 20th appellant sent appellee a letter containing the following: “Since the writer’s return to the city, he has interviewed the Kidder Press Company .in regard to the press they sold you, and has been instructed to advise you as follows: ‘That you may return the press which we sold you irnder contract dated November 27, 1905, within ten days from date, or pay for same as per contract.’ ” On May 29, 1907, appellee wrote GibbsBrower & Co. to the effect that it would be impossi-ble for him to accept their proposition to return the machine, unless the claims he had against the machine were paid. On May 22, 1907, the appellant, through its -general agents, Gibbs-Brower & Co., wrote to the Gibbs-Inman Company, -of Louisville, a letter containing the following: “We are not taking advantage of our relation with Mr. Reed in giving you the information which we have, and suggest that you take over the press and contract, because we know that, in Mr. Reed’s present state of mind, it is just the way he would like to settle-the whole deal.”

Upon the question whether or not the machine was satisfactory, the overwhelming weight of the evidence is that it did not register properly, the output was insufficient, and a large portion of the work which was done for the Colgan 'Gum Company was returned as not being up to their requirements. Because of certain statements of appellant’s agents, to the effect that the machine worked all right while they were in Louisville, because of the fact that appellee retained the machine from January until May and did certain work for the Colgan Gum Company thereon, and because there was some evidence to the effect that the failure of the machine to work satisfactorily was due to the fact that the paper used was defective and the operator employed in managing the machine was slow, it is insisted that the court erred in not submitting to the jury the question whether or not, as a matter of fact, the press was satisfactory. The determination of this question depends upon the further- question whether or not the facts of this case bring it within the line of oases where the purchaser of an article has the arbitrary right to decide that it is unsatisfactory, or that other line of cases where he must decide the question of satisfaction as a reasonable moan.

Upon"this question the authorities are by no means harmonious. Thus in Hummel v. Stern, 21 App. Div. 544, 48 N. Y. Supp. 528, Stern contracted to furnish and install certain ventilating machinery upon the premises of Hummel; the contract providing as follows: “We guarantee to ventilate receiving room to your satisfaction; otherwise, we will remove the wheel without cost to you.” In that case the court said: “A wide distinction is drawn in the cases between contracts for doing work or furnishing material to suit the taste or fancy or caprice of a party, and contracts such as the one in suit. * * * One who makes a suit of clothes or molds a bust may not unreasonably be -expected to be bound by the opinion of his employer honestly entertained; but in cases where the parties contract to do work not of the character referred to above, and it is stipulated that the person for whom the work is to be done is to be satisfied with that work, the final -construction has been given that, to justify a rejection of the work and a refusal to pay therefor, there must 'be some reason for the dissatisfaction shown.” Among- the authorities holding the contrary doctrine may be mentioned that -of Wood R. & M. Machine Co. v. Smith, 50 Mich. 565, 15 N. W. 906, 45 Am. Rep. 57, where it was held that, where the vendor of a har • vesting machine gave a warranty that the contract of purchase should be of no effect unless the machine worked to the buyers’ satisfaction, it was held the purchaser had reserved the absolute right to reject the machine, and that his reasons for doing so could not be investigated. A still stronger case is that of Plano Mfg. Co. v. Ellis, 68 Mich. 101, 35 N. W. 841. The agreement was that a certain grain binder should do good work and “give satisfaction.” It was held that, unless the defendant was satisfied with the machine, although it did good work, he was not bound to purchase. In- the case of McCormick Harvesting Machine Co. v. Chesrown, 33 Minn. 32, 21 N. W. 846, the • plaintiff agreed to furnish the ■ defendant a cord binder guaranteed to work satisfactorily. It was held that in case, upon reasonable trial, it did not work satisfactorily, it was unnecessary for the defendant to return the binder to the plaintiff, but was sufficient for him, within a reasonable time, to notify plaintiff, in substance, that it did not work satisfactorily, and that he declined to accept it. The same ruling was announced in regard to a steamboat, in Gray v. Central R. Co., 11 Hun. 70. The purchasers in that case agreed to buy a steamboat for $15,000, “provided, upon trial, they are satisfied with the soundness of her machinery, boilers,” etc. It was held that no recovery could be had unless it was shown that defendants were satisfied with the boat, whether 'or not they ought to have been satisfied was immaterial. In the case of Aiken v. Hyde, 99 Mass. 183, the same doctrine was laid down with reference to a machine for generating gas; also, in Goodrich v. Van Nortwick, 43 Ill. 445, with reference to a fanning mill; and in Singerly v. Thayer, 108 Pa. 291, 2 Atl. 530, 56 Am. Rep. 207, in regard to ia passenger elevator. Another strong case in support .of the same doctrine is Osborne v. Francis, 38 W. Va. 312, 18 S. E. 591, 45 Am. St. Rep. 859. In that case the defendant bought a harvesting machine upon the condition that if it did not work to his satisfaction he might return it. It was held that his right to reject was absolute, and his reasons for so doing could not be investigated. See, also, Frary v. American Rubber Co., 52 Minn. 264, 53 N. W. 1156, 18 L. R. A. 644; Blaine v. Knapp & Co., 140 Mo. 241, 41 S. W. 787; Wood Reaping & Mowing Machine Co. v. Smith, 50 Mich., 565, 15 N. W. 906, 45 Am. Rep. 57; Reeves & Co. v. Chandler, 113 Ill. App. 167.

In the case before ns the printing press to be constructed was in the nature of an experiment. Appellant had never constructed one like it ’before. The purpose was to enable appellee to supply his customers with machine made wrappers, instead of handmade wrappers. The contract of sale was purely executory. The contract provided that if the machine was not satisfactory it was to be returned. A careful reading of the contract shows that the title was not to vest in the purchaser unless the machine was satisfactory and the purchase price therefor paid. It was a conditional sale, made upon the condition that the machine should be satisfactory. It is insisted that the meaning of “satisfactory” is to be determined by the actual warranty contained in the contract, to the effect that the “said machine is guaranteed to do a good quality of printing and to produce rolls of narrow width, hard and even wound.” In our opinion this would be taking entirely too narrow a view of the word “satisfactory” as repeatedly used in the contract. The machine might comply with the guaranty referred to, and still be utterly useless for the purposes for which it was constructed. The work might be of good quality, and yet the output so small that the machine could not be run except at a loss. When we consider the relations of the parties, the-peculiar circumstances under which the contract was entered into, and the further fact that the title to the property was not to vest unless the machine was satisfactory, we conclude that the parties intended to be bound by' the decision of appellee .as to ■whether or not the press was satisfactory, for it is well settled that, where the contract requires the article to be satisfactory, without stating the person to whom, it is to be satisfactory, it means satisfactory to him to whom it is sold or furnished. Taylor v. Brewer, 1 Maule & S. 290; McCormick Harvesting Machine Co. v. Chesrown, 33 Minn. 32, 21 N. W. 846; Singerly v. Thayer, 108 Pa. 291, 2 Atl. 530, 56 Am. Rep. 207. It may be that appellant was injudicious and indiscreet in undertaking to furnish the press to be paid for upon the happening of a contingency só hazardous or doubtful as the approval or satisfaction 'of appellee, but it assumed the risk. Against the consequences resulting from its own bargain, the law affords it no relief. Having voluntarily assumed the obligations and risk of the contract, appellant’s legal rights are to be ascertained' and determined solely according to its provisions. McCarren v. McNulty, 7 Gray (Mass.) 139. In the record before us there is nothing from which it could be even inferred that appellee was satisfied with the press. For months appellant endeavored to make the machine work to his satisfaction. It utterly failed. Its letter of May 22d to the Gibbs-Inman Company shows that it recognized the fact that appellee was not satisfied with the press. As the contract in question was merely executory, and the sale was made upon the condition that the press should prove satisfactory to appellee, as he alone had the right to determine whether or not it was satisfactory, and iás he at no time,- either by word or deed, intimated that he was satisfied, we conclude that the 'trial court properly instructed the jury to find against plaintiff on its claim for the purchase price.

The proof shows that appellee, after receiving appellant’s letter of May 20th requiring him either to pay or return the machine, boxed the machine up and declined to return it until appellant paid him the sum of $343.46 advanced by him as the living expenses of appellant’s experts. Appellant was a nonresident. The evidence shows that 'appellee’s claim was just. Indeed, there is no evidence to the contrary. It was not incumbent upon appellee to return the press until his valid claim against appellant was satisfied. C. L. Flaccus Glass Co. v. Alvey-Ferguson Co., 102 S. W. 870, 31 Ky. Law Rep. 552. The court did not therefore err in' instructing the jury to find for appellee on his counterclaim.

Judgment affirmed.