
    Lewistown Foundry & Machine Co. v. The Hartford Stone Co.
    
      Charge to jury — Confined to evidence on issue pleaded, when— Breach of warranty — Defective machinery — Delay in operation of factory — Burden of proof — Duty of purchaser upon discovering defects — Retention of defective machinery — Measure of damages — Section 8449, General Code.
    
    1. Where no evidence is offered upon an issue joined by the pleadings in the case, the trial court is not required to charge the jury upon such issue, but, on the contrary, should direct the jury not to consider it. (P., C. & St. L. Ry. Co. v. Fleming, 30 Ohio St., 480, approved and followed.)
    2. Where, in an action for damages for breach of warranty, it is claimed by the purchaser that the defective machinery, covered by the warranty, delayed the operation of the factory of which it is a part, and it appears from, the evidence offered by the purchaser that other causes contributed to the delay, the burden is upon the purchaser to show, by a preponderance of the evidence, what part of the delay was caused by the defect in the machinery warranted and what damages, if any, were sustained by reason of the delay so caused.
    3. Where an article covered by a contract of warranty is purchased for the purpose of being used as a separate unit in a factory, and the operation of the whole factory depends upon’this unit properly performing its part, both in quantity and kind, with the other parts, the purchaser cannot retain this article in place in his factory for an unlimited time after discovering that it is defective and recover as damages the daily loss in the operation of the entire factory, but must within a reasonable time substitute a machine, in place of the defective one, that will do its part of the entire work without delaying the operation of the other parts.
    4. If the purchaser elect to retain such defective machinery as a part of his factory, notwithstanding its failure to produce the quantity of the product manufactured by the factory that it is warranted to do, his recovery is limited by the provisions of division (a), paragraph (1) of Section 8449, General Code, to a recoupment in diminution or extinction, of the price paid therefor.
    (No. 14504
    Decided May 4, 1915.)
    Error to the Court of Appeals of Mahoning county.
    On the 14th day of June, 1912, the Lewistown Foundry & Machine Company filed a petition in the common pleas court of Mahoning county against The Hartford Stone Company to recover $785.09, with interest from the 24th day of April, 1911, on an account for merchandise sold and delivered to it, as shown by itemized account attached to the petition.
    To this petition of plaintiff the defendant filed an answer and cross-petition, denying that it was indebted in any sum or amount whatever on the account attached to the petition, and averring in the cross-petition that it is engaged in the manufacture and production of sand and like products; that in its business it was necessary to use a machine known as a chaser mill, in connection with certain appliances and devices known as washers; that on the 14th day of January, 1910, the defendant entered into a contract in writing with the plaintiff, whereby it agreed to purchase from plaintiff, and plaintiff agreed to sell to it, a nine-foot chaser mill, with certain attachments therein described, for $1,750 and furnish a man to place the mill in successful operation for $4.50 per day and expenses; that the plaintiff agreed to guarantee this material to be of good workmanship, and that it would turn out 200 tons of sand per day.
    A copy of this contract is- attached to the cross-petition, marked “Exhibit A.”
    
    The defendant further avers that the machinery was forwarded by the plaintiff and installed, and that after the same had been in operation it was found to be wholly inadequate and not in compliance with the terms of the agreement and warranty, in that it would not produce 200 tons of sand per day.
    Defendant avers that before it learned of the inefficiency of the machine it paid the contract price therefor, and that it has in all respects performed all the conditions and obligations upon its part to be performed under the terms of said contract; that by reason of the breach of warranty the defendant has been put to great expense, loss and inconvenience in the operation of its business; that it has been unable to produce sand in sufficient quantity to meet the requirements of its business, and that the cost of production of the sand it has been able to produce has been greatly increased by reason of this breach of warranty, to the damage of the defendant in the sum of $1,500.
    To this answer and cross-petition the plaintiff filed a reply and answer, admitting the contract and averring performance on its part; and further averring, that after the machinery and appliances were erected and completed the same were tested and defendant, being fully satisfied, accepted the same.
    The plaintiff further avers that the merchandise specified in “Exhibit A,” attached to plaintiff’s petition, was furnished under a separate order, which was given after the appliances and machinery referred to in the contract had been fully erected and accepted.
    The plaintiff further avers that the defendant determined upon the location of the washers used in connection with said machinery and chaser mill, against the advice of this plaintiff, and avers that the plant erected by it under said contract will produce sand in the amount guaranteed, if properly operated, and that if it will not produce sand in that amount it is solely on account of the location of the washers or the improper operation of the plant, for which plaintiff is in nowise responsible.
    The defendant replied to this answer to its cross-petition, denying all averments made therein except such as are admissions of the allegations in defendant’s cross-petition.
    The issue so joined was submitted to a jury, resulting in a verdict for the plaintiff for the full amount of its claim, with interest, and for defendant on its cross-petition in the sum of $300. Judgment was entered for the plaintiff for $547.81, the balance of the verdict in its favor.
    This judgment was reversed by the court of appeals for “error in giving in charge to the jury written instruction No. 6,” which reads as follows:
    “If you find that the defendant is entitled to damage, the measure of damage is the difference between the value of the machinery purchased under the contract attached to the answer and cross-petition of defendant as warranted, and the machinery as found.”
    This proceeding in error is brought to reverse the judgment of the court of appeals, and to affirm the judgment of the common pleas court.
    
      Messrs. McKain & Ohl and Mr. J. B. Morgan, for plaintiff in error.
    
      Messrs. Hine, Kennedy ■& Manchester, for defendant in error.
   Donai-iue, J.

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 defendant fairly brings this case within the terms of this paragraph of Section 8449, General Code, but there is no evidence in this record from which the jury could find that the defendant sustained any other or further damages than the difference between the value of the machinery at the time of the delivery to the defendant and its value if it had answered to the warranty.

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 to 90 tons a day. When asked why they varied so much in tonnage produced, the witness answered :

“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 delayed the operations of a plant producing from 40 to 90 tons a day, is not made apparent by the evidence, but it does appear that other causes at least contributed to, if they did not cause all, the delay, and this appearing from the evidence offered by the defendant, placed upon the defendant the burden of showing by some evidence what part of the total delay, if any, was occasioned by defects in the mill; and if it were the further claim of the defendant that, by reason of the defects in the mill, the cost of production of each ton of sand was increased, the defendant must furnish some evidence as to the amount of this increased cost of production, before the jury would be authorized to consider that as an element of damages.

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 answer to the warranty. This is denied by the plaintiff. This issue of fact was submitted to the jury, and the jury found for the plaintiff. It follows that these additional washers cannot now be considered by the court as furnished under the contract or covered by the contract of warranty in the original contract of sale.

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 by reason of the breach of warranty, other than the evidence offered as to the value of the mill at the time it was delivered to the buyer and the value it would then have had, had it answered to the warranty.

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 machinery, to avoid, as much as possible, damage which the plaintiff would be responsible for on account of breach of warranty. Upon the discovery of the defect in this unit of the plant, and it appearing that this defect would cause daily losses in the operation of the entire plant, the defective mill should have v been removed from the plant, within a reasonable time, and another substituted in its place that would do its respective part in the operation of the whole factory. The purchaser would then be entitled to recover from the seller, as damages for breach of warranty, not only the increased cost of the mill and the additional cost of installing the same, but also any other loss directly and naturally resulting in the ordinary course of events, up to the time and until a proper mill was installed and put in operation, if that were done within a reasonable time; but on the contrary, if, notwithstanding the mill is defective, in that it will not produce the quantity of sand it was warranted to produce, the purchaser elects to retain the mill in place and use the same as a part of his factory, he will be limited in an action against the seller, in a breach of warranty, to a recoupment in diminution or extinction of the price paid therefor, under the provisions of division (a), paragraph (1) of Section 8449, General Code. The question, of course, as to whether the purchaser had elected to keep such defective mill, and the further question as to what would be a reasonable time that should be allowed to the purchaser to make such substitution, would ,both be questions for the jury, to be determined by it under the peculiar circumstances of each particular case-.

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.

Nichols, C. J., Wanamaker, Newman, Jones and Matthias, JJ., concur.  