#### Neck and another, Respondents, vs. Marquette Cement Manufacturing Company, Appellant.

*September 16*

October *6, 1914.*

*Sales: Breach 'of warranty: Evidence.*

*Where*the contract under which cement was sold specified that it should “conform to standard specifications for Portland cement adopted by the American Society for Testing Materials, with methods of testing recommended by the American Society of Civil Engineers,’’ but did not make such test exclusive, the inferiority of the cement might he shown by other evidence. So *held*where a carload of cement had all been used and there was evidence that it had been .properly mixed and laid but that the results obtained were so poor that much of it had to be replaced, and an expert testified from examination and from the evidence as to how the work had been done that the cement did not come up to the standard required by the specifications.

Appeal from a judgment of tbe circuit court for Marquette county: Chester A. Eowler, Circuit Judge.

*Affirmed.*

Plaintiffs bring this action, to recover from the defendant damages alleged to have been sustained on account of defects in cement purchased from defendant. The complaint sets up two causes of action, one on a carload of cement purchased in July, 1912, and the other on a carload purchased in November, 1912. It is alleged that the cement was warranted to be merchantable, marketable cement, well fitted for the .manufacture and making of cement products and for general use in the construction of cement work; that plaintiffs used said cement in laying and building a cement floor, and that thereafter the floor was found to be cracked, checked, and chipped, and that the floor was not lasting and durable, hut was soft, defective, and worthless, and that plaintiffs wore and will he compelled to tear oxit such defective floor and rebuild and reconstruct it; also that said cement was used in *299tbe manufacture of cement blocks, for use in the erection and construction of dwellings, etc.; that the blocks cracked, split, and broke and became worthless, weakening the walls and sides of the building, and that by reason of the defective cement plaintiffs were damaged in the sum of $1,907.50.

By its answer the defendant, in substance, denies that the cement was defective, and alleges that if plaintiffs failed to secure proper results in the use.thereof it was due to carelessness and neglect and the improper manner in which the cement was prepared for use by plaintiffs. Defendant also counterclaimed for the purchase price of the cement. The contract under which the cement was sold contained the following specifications:

*“Specifications.*The cement is to conform to standard specifications for Portland cement adopted by the American Society for Testing Materials, with methods of testing recommended by the American Society of Civil Engineers.”

The jury returned the following special verdict:

“(1) Did the cement contained in the July shipment conform to standard specifications for Portland cement adopted by the American Society for Testing Materials, with methods of testing recommended by the American Society of Civil Engineers ? *A.*No.

“(2) If to the above question you answer ‘No,’ then answer this question: What damage did the plaintiffs sustain by reason of the failure to conform thus found ? *A.*$400.

“(3) Did the cement contained in the November shipment conform to standard specifications for Portland cement adopted by the American Society for Testing Materials, with methods of testing recommended by the American Society of Civil Engineers ? A. No.

“(4) If to the above question you answer ‘No,’ then answer this: What damages did the plaintiffs sustain by reason of the failure to conform thus found? *A.*$287.30.”

Erom a judgment entered in favor of plaintiffs and against the defendant for the sum of $562.35, defendant appeals.

Eor the appellant there was a brief by *Metzler & Metzler,*
      *300attorneys, and *Benj. T. Roodhouse,*of counsel, and oral argument by *Mr. Roodhouse.*

*D. W. McNamara,*for tbe respondents.

Barnes, J.

The appellant insists that there was no competent evidence to-show that the cement did not conform to the specifications of the contracts of sale.

As to the second shipment this contention is untenable. Professor Johnson of the State University, an expert on cement construction, made a test of samples of cement taken from such shipment and testified that it did not meet the requirements of the specifications. It is true that in making his test he departed slightly from the methods recommended by the American Society of Civil Engineers, but he stated that the departure was immaterial, and we find no evidence to contradict this statement.

The first carload of cement had all been used before the controversy arose, so that no test could be made of it. There was evidence tending to show that it had been properly mixed and laid and that the results obtained were so poor that considerable of it had to be replaced. Professor Johnson also examined the floors and blocks made from it and testified in substance from the examination made and from the' evidence given as to how the cement construction had been made that the first carload did not come up to the standard required by the specifications. The appellant claims that this evidence was incompetent and that the only way in which the quality of the cement could be determined was by making the test provided for. The contract did not so provide. The evidence offered certainly tended to show that this cement did not conform to tire standard specifications for Portland cement adopted by the American Society for Testing Materials, with methods recommended by the American Society of Engineers. In the absence of a provision in the contract making the test the sole evidence of the inferiority *301of the cement, the fact might be established by other evidence. *Ganson v. Madigan,*13 Wis. 67. What the effect of such a provision in the contract would be is not involved and is not decided.

*By the Court.*— Judgment affirmed.