{
  "id": 2970569,
  "name": "Adkins, Young & Allen Company, Appellee, v. Rhinelander Paper Company, Appellant",
  "name_abbreviation": "Adkins, Young & Allen Co. v. Rhinelander Paper Co.",
  "decision_date": "1916-05-01",
  "docket_number": "Gen. No. 21,940",
  "first_page": "347",
  "last_page": "350",
  "citations": [
    {
      "type": "official",
      "cite": "199 Ill. App. 347"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 428,
    "char_count": 7054,
    "ocr_confidence": 0.548,
    "sha256": "11885b3425d99a1e24495694f6b866eab92ff90563102b623653da8af81ad4ed",
    "simhash": "1:114faf005e1026d1",
    "word_count": 1200
  },
  "last_updated": "2023-07-14T15:51:30.955611+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Adkins, Young & Allen Company, Appellee, v. Rhinelander Paper Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice McSurely\ndelivered the opinion of the court.",
        "type": "majority",
        "author": "Mr. Presiding Justice McSurely"
      }
    ],
    "attorneys": [
      "Meyer Shapiro, for appellant; Gregory & McNab and Albert S. Long, of counsel.",
      "Bryan, McCormick & Wilber, for appellee; William E. Bryan, of counsel."
    ],
    "corrections": "",
    "head_matter": "Adkins, Young & Allen Company, Appellee, v. Rhinelander Paper Company, Appellant.\nGen. No. 21,940.\n(Not to he reported in full.)\nAppeal from the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding. Heard in this court at the October term, 1915.\nCertiorari denied by Supreme Court (making opinion final).\nReversed and judgment here.\nOpinion filed May 1, 1916.\nRehearing denied May 15, 1916.\nStatement of the Case.\nAction by Adkins, Young & Allen Company, a corporation, plaintiff, against Rhinelander Paper Company, a corporation, defendant, to recover a balance said to be due for installing in defendant\u2019s manufacturing plant what are called \u2018 \u2018 Fuel Economy Gauges. \u2019 \u2019 Defendants in its affidavit of defense alleged failure of plaintiff to perform its contract; it also filed a claim of set-off. Upon trial by the court defendant was defeated as to its set-off, and plaintiff had judgment for $2,000, from which defendant appeals.\nThe evidence showed that letters contained the contract of the parties. On September 22, 1913, plaintiff wrote to defendant offering to equip one of its boilers, No. 6, with \u201cIndicating and Recording Gauges,\u201d with a guaranty that they would increase \u201cthe efficiency of evaporation at least five (5%) per cent.,\u201d to be determined by tests. If the increase was not shown the device was to be removed free of charge. This offer was accepted. On January 3, 1914, plaintiff wrote as follows:\n\u201cAs per our contract of September 22nd, 1913, and your letter of the 30th ult., we take pleasure in submitting this contract that covers every detail of both our written and verbal agreements.\u201d\nThen follows a proposition to equip each of defendant\u2019s five other boilers with the \u201cWilsey Fuel Economy Gauges,\u201d under the following conditions:\n\u201cWe guarantee to increase the efficiency of steam production at least five (5) per cent, over present figures.\n\u20181 This savings guarantee to be determined by two (2) evaporative tests each of one (1) week duration. One test under present conditions and the second test with the fireman taking advantage of our gauge readings. It is understood you will have one of your men check these figures at all readings and verify them to you.\n\u201cIn the event of test not being satisfactory to either party, duplicate tests are to be conducted.\n\u201cIf, according to these tests, give (5) per cent, or more increase in the evaporation per fuel unit is shown, the complete installation is to be paid for within thirty (30) days of installation.\n\u201cIf less than five (5) per cent, increase in efficiency is shown, the equipment is to be removed free of charge to you.\n\u201cThese efficiency tests are to be as stated, each of one (1) weeks duration, i. e., six (6) consecutive working days each. * * *\n\u201cPrice of complete installation as above outlined and subject to above guarantees, including our services as efficiency engineers, to be two thousand ($2,000) dollars.\n\u201cThe installation on No. 6 boiler to be paid for as per previous contract if these tests are completed as outlined and show 5% or more.\u201d\nThis, also, was accepted by notation on the letter.\nThe gauges having been installed, the tests contemplated were made, commencing February 16th and ending February 28th. At the conclusion of the tests it was reported by plaintiff\u2019s representative to the defendant that these tests showed an \u201cincrease in evaporation or efficiency of 17.24%.\u201d Defendant\u2019s manager expressed doubt as to the accuracy of these figures, saying that he wanted to run another test the following week. This conversation took place on Saturday. The manager said he knew there was something wrong with this test, and he wished to confirm it. Mr. Adkins of the plaintiff company asked for a payment on account, and represented that they had been at considerable expense and that there was no question of making the saving of five per cent., and that they would like to have a little advance. Thereupon plaintiff was paid $425. At the same time plaintiff \u2019s representative was again told that defendant\u2019s manager was sure these figures were not correct and that he would make another test the following week. This was agreed to by plaintiff. This second test was made, and two days thereafter, that is on March 18th, defendant reported to plaintiff that this test \u201cindicated a saving of 1.91%.\u201d Letters passed between the parties in which plaintiff argued that this second test showed the saving guarantied, which claim was combated by defendant. On April 14th, defendant wrote to plaintiff as follows:\n\u201cYour favor of the 9th received and we do not agree with you that there has been an average saving of 10%% in our boiler room since installing your Economy G-auges.\n\u201cAs advised you when here, the first test without the gauges was not a practical one in any way as it showed the highest cost of fuel of any run ever made in the history of our mill. It was for this reason that I took advantage of our contract for a second test.\n\u201cUp to the present time we are not satisfied with the results shown since the last test showed a saving of less than 5% and we might have had this difference in firing from one week to another without any gauges attached.\n\u201cPlease note, therefore, that we do not accept the apparatus.\u201d\nThere was a disagreement between the parties as to the consumption of wood fuel in the respective tests, defendant claiming that in the first test this consumption was disregarded, and plaintiff claiming that this factor was of no importance. In June and July defendant had tests made as to the fuel value of wood such as was used in its mill, but the court refused to allow the result of these tests to be shown.\nAbstract of the Decision.\n1. Contracts, \u00a7 330 \u2014when payment on account not a waiver of conditions of contract. In an action to recover a balance claimed to be due for installing a device in defendant\u2019s plant, evidence examined and held to show that a payment of a part of the purchase price did not constitute a waiver by defendant of the conditions and guaranties of the contract and an acceptance of the device.\n2. Contracts, \u00a7 374*\u2014when burden of proving compliance on plaintiff. In an action to recover a balance claimed to be due under a contract for the purchase of a device, where defendant sets up a failure of the device to fulfil the conditions and guaranties of the contract, the burden is on plaintiff to show that the device conformed to such guaranties.\n3. Set-oto and recoupment, \u00a7 18*\u2014when amount paid on account recoverable. Were a buyer has paid a part of the purchase price upon a condition to be subsequently performed which thereafter fails, he is entitled to recover such amount on a plea of set-off in an action to recover the balance of the purchase price.\nMeyer Shapiro, for appellant; Gregory & McNab and Albert S. Long, of counsel.\nBryan, McCormick & Wilber, for appellee; William E. Bryan, of counsel.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0347-01",
  "first_page_order": 369,
  "last_page_order": 372
}