Patterson v. Brace

Opinion by Mb. Justice Potteb, The plaintiff is an engineer and contractor for the erection of steam plants, and as such, contracted to furnish and erect for the defendants “ two horizontal tubular boilers of 125 horse power each, the shells to consist of four plates, one on the bottom from head to head, and extending up above the fire line and three plates on top.” The boilers were manuf ¡ctured and delivered to the boiler house of the defendants, and the plaintiff was proceeding to erect them in place, when he was stopped by the defendants, upon the ground that the specifications had not been accurately followed. The boilers were finally removed by the plaintiff, under an agreement that it should be without prejudice, and that the defendants should have credit for the proceeds of their sale in case of verdict against them. The plaintiff then brought this action in assumpsit for the price. At the trial, the chief point set up by the defense was that the bottom plate did not extend up above the fire line. The specifications did not, however, fix definitely the location of the fire line upon the boiler, and the question was as to just where the fire line ought to be. If its proper location was as claimed, by the plaintiff, then there was literal compliance with the terms of the contract; while if the contention of the defendants in this respect was correct, there was room to doubt. The court submitted the evidence to the jury, and the result was a verdict for the plaintiff. In this appeal the first assignment of error complains of the refusal to give binding instructions in favor of the defendants. The court was clearly right. There was ample testimony upon the part of the plaintiff, if believed by the jury to justify a verdict in his behalf. This assignment is therefore overruled. The second assignment is to the refusal of the defendants’ second point. This was in effect that if the jury found from the evidence that the bottom plate did not extend up above the fire line, and for that reason the defendants had refused to accept, then the verdict should be for the defendants. The [111] court refused this point precisely as put, upon the ground that it would prevent the jury from considering whether or not there had been substantial compliance with the contract, even if it had not been literally performed. At the same time the jury were cautioned that the burden was upon the plaintiff to show that the difference, if any, was of no substantial effect. We think the court might properly have affirmed this point as it was put hypothetically. But taking what was said in the general charge, in connection with the answer to the points, the jury were fairly left to decide from the evidence whether the defendants received substantially the article for which they had contracted. The defendants claimed that this was a case in which they had a right to insist upon exact and literal compliance with the agreement; but the difficulty in supporting this contention, lies in the fact that in contracting for the boilers, they simply specified that the bottom shell should consist of a single plate, which should extend up above the fire line ; but did not specify the precise point upon the circumference of the boiler at which the fire line should be located. Neither did they specify the width of the bottom plate. If either of these particulars had been accurately prescribed, there would have been no room for dispute, and the defendants would have been in position to demand literal compliance with a plain requirement of the contract. The diameter of the boiler was specified; so was the thickness of the shell, and its quality and tensile strength. But nothing was said as to the width of the plate, except that it should extend up above the fire line at each side. Now where was the fire line? Its position or location not having been specified in this instance by the defendants, the jury must of necessity determine under the evidence whether its location as proposed by the plaintiff was proper, and whether when property located, the bottom plate extended above it. This duty was imposed upon the jury by reason of the lack of particularity in the defendants’ specification. According to the testimony the fire line is simply the point where the supporting and protecting brickwork closes in around the boiler, and it is the point where the fire is stopped in going up the sides of the boiler. The plaintiff proposed to put the fire line in this case at, or a little below, the center; and to build the brick wall in [112] such manner as to cover the seam or lap of the plates and protect it from the fire. If the evidence of the plaintiff’s expert is believed, this was thoroughly good practice, as the lower the fire line was placed, the greater the degree of safety; and although this tended to reduce the area of heating surface beneath the boiler, yet no contention is made in this case that the capacity falls below the amount called for,—125 horse power. All the evidence goes to show that under the practice of boilermakers the fire line is not fixed in any specific location, but varies from the center line up to three fifths of the circumference of the boiler. We think therefore that no injustice was done to the defendants by the answer to the second point. The third assignment of error complains of the qualification by the court of the defendants’ third point, in instructing, the jury that a literal compliance with the contract was not required. This qualification was probably made, by the court having in mind a variation in the size of the manhole, and some minor defects which were raised at the trial, but do not seem to have been pressed any further. At all events, under the view we take of the case, the charge as a whole gave to the defendants the full benefit of everything to which they were entitled. The defendants refused to accept the boilers, and they were removed by the plaintiff, but under an agreement by which the defendants were to be credited with the proceeds of their sale so there can be no reasonable complaint upon this score. The judgment is affirmed.