Facts
The plaintiff Imstepf sold the defendant Weger a gravel processing plant. According to the contract, the defendant guaranteed an hourly output of 12 m3. However, an expert jointly appointed by the parties found that the actual performance capacity of the plant was at most 4 m3 per hour. Thereupon, the plaintiff demanded a reduction in the purchase price, which the defendant rejected and instead requested a further expert opinion.
When the plaintiff in September 1958 made preparations to replace the plant, the defendant obtained a precautionary measure from the competent judge, prohibiting the plaintiff from making any changes to the existing plant. The subsequent further expert opinion, however, came to the same conclusion as the first report, whereupon the judge lifted the precautionary measure.
Subsequently, the plaintiff sued the defendant for damages in the amount of 50,000 francs due to the delay in the conversion work caused by the unjustified precautionary measure. The Cantonal Court of Valais dismissed the claim, whereupon the plaintiff appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the plaintiff's appeal. It stated that the plaintiff had based his claim for damages not on a provision of cantonal procedural law, but exclusively on federal civil law (Art. 41 et seq. CO, Art. 2 CC). Therefore, the Federal Supreme Court could not review the question of any liability ex lege under cantonal procedural law.
With regard to federal civil law, the Federal Supreme Court denied the unlawfulness of the defendant's conduct. Although the precautionary measure was not substantively justified, as the further expert opinion confirmed the findings of the…