Listman Mill Co. v. Avery Scale Co. ( 1911 )

WiNsnow, C. J.

Tbe trial judge nonsuited tbe plaintiff on tbe ground tbat. tbe evidence failed to sbow any breach of tbe contract of sale, but ratber showed tbat such contract bad been substantially performed within the definition of substantial performance given by this court in Manning v. School List. 124 Wis. 84, 102 N. W. 356, and Mueller v. Burton, 139 Wis. 384, 121 N. W. 152, 176. After careful consideration of tbe evidence as preserved in tbe bill of exceptions, we are unable to say tbat the conclusion of tbe trial court, giving it tbat weight to which it is entitled, was wrong.

Tbe sole defect claimed in tbe scale was tbat it did not ful- • fil tbe guaranty tbat it would weigh grain accurately to within one eighth of one per cent, of clean wheat, and tbe proof submitted consisted of tabulated statements of tests made for sixty-four days, beginning March 20, 1908, and ending about August 1st of tbe same year. Tbe scale in ■question was an automatic self-registering scale,- so arranged as to weigh about twenty bushels of grain, record tbe weight automatically, dump tbe amount weighed, receive and weigh another load, and thus proceed as long as tbe machinery was running and grain was delivered to it. It was located in tbe upper part of tbe mill and some sixty-five feet above what is ■called tbe hopper scale, which bolds about 1,000 bushels before it discharges and into which tbe cleaned wheat first goes. After being weighed in tbe hopper scale it is taken by a pocket elevator up seven floors, dumped in a bin, and carried by pocket elevators from this bin to tbe Avery scale in question and there reweighed.

Tbe tests before mentioned were comparisons between tbe weights registered by tbe scale in question and tbe weights Tecorded by tbe hopper scale. Varying amounts, ranging .ffrom half a■ million to more than-a million pounds per day, were thus weighed upon the two scales during the sixty-four days when the tests were. made. There was sufficient evidence, prima facie at least, to show that the hopper scale was accurate.

■It will be unnecessary to insert the tabulated statement of tests made. During the month of March and the first half of April there was a considerable discrepancy between the two scales, which averaged considerably more than the allowed percentage, but beginning with April 15th the differences are slight and become very uniform.

The discrepancy allowed by the contract was one eighth of one per cent., or, 'expressed in decimals, .00125. The average discrepancy shown by the totals from April 15th to July 31st inclusive is .00141, and upon every day, except one, beginning with April 28th the weight registered by the scale in question is slightly less than that registered by the hopper scale, showing very clearly that the difficulty is one of adjustment rather than inaccuracy.

Taking the six weeks period from May 20th to June 30th inclusive, during which time tests were carried on during nineteen entire days, the discrepancies average .00122 plus, which is below the allowed percentage. In July there is a, slight increase in the percentage, but quite a uniform one, which again indicates that the difficulty must be simply one of adjustment.

Considering the fact that comparison is made between a scale registering a' thousand bushels at a load and one registering but twenty bushels and that the grain .is carried through two sets of elevators and one bin before being delivered on the second scale, we think that the infinitesimal difference between the discrepancy contracted against and the one actually shown cannot be considered as even tending to-show that the scale did not, when properly adjusted, fulfil the contract requirements.

By the Oourt. — Judgment affirmed.