Phipps v. Wisconsin Central R. Co. 130 Wis. 279. PHIPPS, Administratrix, Respondent, vs. WISCONSIN CENTRAL RAILWAY COMPANY, Appellant. December 4, 1906-January 8, 1907. Order made in proceedings to examine adverse party: Interlocutory orders: Appealable orders. 1. The examination of a party under the provisions of sec. 4096, Stats. 1898, is both a special proceeding and a provisional remedy. 2. An order requiring the witness to produce books and papers, made in the course of an examination of a party under the provisions of sec. 4096, Stats. 1898, is merely an interlocutory order regulating the manner of procedure upon the examination, is in no sense a final order, and does not in any proper sense grant, refuse, continue, or modify such provisional remedy. 3. Such order is not appealable under the calls of sec. 3069, Stats. 1898. APPEAL from an order of the circuit court for Milwaukee county: WARREN D. TARRANT, Circuit Judge. Dismissed. The respondent moved to dismiss the appeal. For the motion there was a brief by Timlin & Glicksman, and oral argument by W. L. Gold. W. D. Corrigan, for the appellant. WINSLOW, J. This is an action to recover damages on account of the death of Chas. Phipps, deceased, plaintiff's husband, who was a locomotive engineer in defendant's employ, and is alleged to have been killed by reason of the negligent and insecure construction of the railroad bridge on defendant's road through which his engine was precipitated. The defendant's answer denied all negligence. After issue was joined the plaintiff gave notice of taking the depositions of Charles M. Morris, the secretary, and of Thomas H. Gill, the general attorney, of the defendant company, as adverse witnesses, under the provisions of sec. 4096, Stats. 1898, and its amendments. The attendance of the witnesses before the Phipps v. Wisconsin Central R. Co. 130 Wis. 279. commissioner was compelled by a subpoena, which also required the production on the hearing of the plans of the bridge in question, as well as all telegrams or orders sent by the company to the conductor of the train which met the accident, as well as all other writings, telegrams, or statements in possession of the company relating to the inspection of the bridge, the cause of the disaster, or the matters set forth in the complaint. The witnesses declined to produce the plans and statements so desired, notwithstanding they were directed so to do by the commissioner, and the proceedings were thereupon certified to the circuit court, and upon motion that court made an order commanding the witnesses to produce the plans of the bridge, the telegrams or orders sent to the conductor or train crew, and the names of defendant's employees who possessed any knowledge of the accident. From this order the defendant appealed, and the plaintiff now moves to dismiss the appeal. Appealable orders are classified and defined by sec. 3069, Stats. 1898. Reference to that section demonstrates at once that if the order before us is appealable it must be because it is (1) a final order affecting a substantial right made in special proceedings, or (2) an order granting, refusing, continuing, or modifying a provisional remedy. It is settled that the examination of a party under the provisions of sec. 4096, supra, is both a special proceeding and a provisional remedy. An order made in the course of such an examination, requiring the witness to produce books and papers, is, however, merely an interlocutory order regulating the manner of procedure upon the examination, and in no sense a final order; nor does it in any proper sense grant, refuse, continue, or modify the provisional remedy. These propositions have been fully settled by the court in previous decisions, and cannot be considered as open to doubt. Stuart v. Allen, 45 Wis. 158; Knowles v. Rogers, 99 Wis. 231, 74 N. W. 813; State ex rel. Carpenter v. Mathys, 115 Wis. 31, 91 N. W. 114; Ellinger Forster, Waterbury Co. v. F. MacKinnon Mfg. Co. 130 Wis. 281. v. Equitable L. Assur. Soc. 125 Wis. 643, 104 N. W. 811. That such an order is not a final order is also held by the supreme court of the United States in Alexander v. U. S. 201 U. S. 117, 26 Sup. Ct. 356. By the Court.-Appeal dismissed. FORSTER, WATERBURY COMPANY, Respondent, vs. F. MACKINNON MANUFACTURING COMPANY, Appellant. December 5, 1906-January 8, 1907. Sales: Defects: Waiver: Measure of damages: Evidence. 1. Where articles required by contract to be of a particular character are shipped to the executory vendee as the proper kind and received by the latter without notice being given to the vendor, within a reasonable time thereafter, that the articles will not be accepted as satisfying the contract, all defects discoverable by reasonable attention to the matter are waived. 2. Where the manufacturer and seller of iron castings was to deliver in instalments, and after two shipments the buyers made complaint of defects, and in order to remedy such defects the patterns were changed and improved, and thereafter shipments were regularly made during an interval of about six months without definite notice of defects until after all shipments were substantially completed, the court is warranted in holding as matter of law that such defects, as to the castings made after the patterns were improved, were waived. 3. In such case, under the evidence, stated in the opinion, the alleged defects are held not to be so serious as to render the castings not good and suitable within the calls of the contract under which they were furnished. 4. In an action for the contract price of iron castings of certain required strength, it is not necessary for defendant, in order to enable it to recover for the failure of unused castings to come up to the contract requirements, to prove the amount of defectives, or the diminished value of the castings by reason thereof, with the certainty of a demonstration. All that is required is that such matters be established with reasonable certainty. 5. In an action for the contract price of iron castings required to be of certain strength, defendant counterclaimed for loss occa Forster, Waterbury Co. v. F. MacKinnon Mfg. Co. 130 Wis. 281. sioned by the failure of unused castings to come up to the contract requirements. It appeared, among other things, that the castings used, or attempted to be used, were fairly representative of the character of those that remained, and that about twenty per cent. of the castings used had latent defects causing them to break under the pressure required in their use and were wholly useless except for scrap iron. Held: (1) In the absence of any affirmative evidence to the contrary, it was inferable, with sufficient certainty to sustain a anding, that the same proportion of those not used were likewise defective. (2) A legitimate basis was established for estimating damages as to the castings not used. (3) Defendant was entitled to recover the amount per pound the evidence showed to be the difference in value between the castings furnished and those called for by the contract requirements. APPEAL from a judgment of the circuit court for Wood county: CHAS. M. WEBB, Circuit Judge. Reversed. Action to recover on a sale contract between plaintiff as seller and the defendant as purchaser, the terms of which were as follows: “To... . . . . . . The F. MacKinnon Mfg. Co.: "Quantity....40 tons malleable castings. "Price... Patterns to be furnished by buyer. Castings to be good and suitable quality for hub bands. Buyer to have the privilege of returning any imperfect castings. 54c per pound in carload lots on cars, Centralia, Wisconsin. "Terms. . . . . . Freight cash, to be paid by buyer, balance cash thirty days from invoice date. "Settlement other than net cash at Chicago, or by Chicago or New York draft, must include exchange. Notes must be for net amount, including interest and collection charges. All settlements must be made within thirty days from invoice date, unless otherwise specified. "Shipments to be Made-One car about Jan. 1st, 1900. Balance prior to July 1st, 1900. "Via C., M. & St. P. Ry. "Freight Rate. Forster, Waterbury Co. v. F. MacKinnon Mfg. Co. 130 Wis. 281. "In case of accident or other cause, causing the stoppage or partial stoppage of the works of either the sellers or buyers, the deliveries herein contracted for may be suspended, or at the option of the party not in default may be canceled during the continuance of said interruption. Such suspension or cancellation shall not invalidate the remainder of the contract, but on the removal of the cause of the interruption the deliveries shall be continued at the specified rate, and if the overdue deliveries shall not have been canceled they shall be made then at the regular rate, commencing when the contract would otherwise have ended. "FORSTER, WATERBURY & Co." There was a preliminary memorandum in respect to the matter in the following words: "Forster, Waterbury & Co., "Centralia, Wisconsin, "November 20th, 1899. "Memo. of agreement between the F. MacKinnon Mfg. Co. and Forster, Waterbury & Co. That the F. MacKinnon Mfg. Co. do contract with Forster, Waterbury & Co. for forty tons of malleable castings, at 54e per pound, in car lots, f. o. b. Centralia. Terms thirty days. The malleables to be suitable for the purposes required, and to be tough enough to stand the hydraulic pressure required of them. All defective malleable to be returned. "THE F. MACKINNON MFG. Co., "F. MacKinnon, Secy." The final contract embodied the provisions before indicated. Soon after deliveries commenced the defendant complained that the malleables were defective, in that the dove-tailed slots in the rims of the castings were more or less filled up and the castings were so brittle that many of them broke under the necessary pressure applied to place them on the wooden centers of the hubs. The malleables were intended for use as part of the make-up of wagon hubs. Complaints. as to the defective character of the malleables continued from |