Pennsylvania Iron Works Co. v. Hygeian Ice & Cold Storage Co.

Morton, J. This is an action to recover money alleged to be due under a written contract and also upon an account annexed. At the trial it was agreed that the only matters in dispute were, first, the sum of $1,500 alleged to be due under the written contract, second, a balance of $68 also alleged to be due under the written contract, and, third, a claim made by the plaintiff on account of certain machinery which the defendant was to deliver to the plaintiff on the cars at Fall River. There was a verdict for the plaintiff, in part directed by the judge and in part upon matters submitted to the jury, and the case is here upon exceptions by the defendant to the exclusion of evidence that was offered and rejected, and to the refusal of the presiding judge to give certain instructions that were requested. The case depends it seems to us upon the construction to be given to the written contract. There had been a previous contract between the plaintiff and the defendant, under which the plaintiff had delivered to and erected on the defendant’s premises at Fall River an ice making plant, and for the purpose of settling and adjusting matters growing out of that contract, the contract in question was entered into. The plaintiff agreed to deliver on the defendant’s premises in Fall River, and in the location required by its ice making plant, a twenty ton evaporating apparatus of the “ Lillie ” type, or of some other type of equal capacity, and the defendant agreed to deliver to the plaintiff on the cars at Fall River that portion of the plant previously installed which the “ Lillie ” apparatus superseded. The defendant also agreed to pay to the plaintiff in one month from the delivery the sum of $1,500, unless, within that time, it notified the plaintiff that the apparatus had failed to accomplish the results guaranteed by the company which contracted with the plaintiff to furnish it, and requested its removal. This company was the Sugar Apparatus Manufacturing Company. The contract stated that the month between the delivery of the ap 370 paratus and the payment of the $1,500 was given in order that the defendant might have the opportunity to determine whether the capacity of the apparatus was twenty tons as called for by the contract. A copy of the contract between the plaintiff and the Sugar Apparatus Company was attached to the duplicate original of the contract between the plaintiff and the defendant furnished to the defendant, but was in no other way made a part of that contract, the only reference to it being that already mentioned.' As we construe the contract between the plaintiff and the defendant, the plaintiff was to deliver on the premises of the defendant in Fall River, in the location required by the existing plant, a twenty ton evaporating apparatus of the “ Lillie ” or of some other equal type, and within one month after the delivery the defendant was to pay the plaintiff $1,500, unless, in the meantime, it appeared that the apparatus had not a capacity of twenty tons, or unless the defendant notified the plaintiff that it did not accomplish the results guaranteed by the Sugar Apparatus Company, and requested its removal. The plaintiff did not guarantee that the apparatus would furnish merchantable ice free from impurities and odors, or that it would work satisfactorily in connection with the ice making plant already installed. Indeed it would seem from the correspondence that was put in without objection that the plaintiff did not believe that the “ Lillie ” apparatus would accomplish the results desired, and so informed the defendant, and that the defendant was content to take the risk. All that the plaintiff was required to do was to deliver the apparatus upon the defendant’s premises in the location required and thereupon the defendant became bound to pay the plaintiff $1,500 in one month, unless it turned out that the apparatus was not of twenty ton capacity, or unless the defendant notified the plaintiff that the apparatus failed to accomplish the results guaranteed by the sugar company, and requested its removal. It is conceded that the contract did not require the plaintiff to set up the apparatus. The uncontradicted evidence showed that the apparatus was delivered upon the premises of the defendant and in the location required, and that the defendant kept and used it, and that it was included in the property conveyed by the defendant when the plant was sold. In view of the uncontradicted evidence that it was deliv 371 ered as required, evidence that it was not accepted was immaterial. There was no contention that it was not of twenty ton capacity, or that the defendant had delivered to the plaintiff the apparatus superseded by it. The fact, if it was a fact, which the defendant offered to show, that the apparatus produced bad ice was immaterial. If the defendant was dissatisfied with the apparatus, it was bound, under the contract, to notify the plaintiff within a month after the delivery and request its removal. There was nothing to show that it did so, or that those provisions of the contract were waived by the plaintiff, or that anything occurred to excuse the defendant from complying with them. It is true that the defendant expressed dissatisfaction, and that efforts were made to improve the apparatus so that it would produce better ice, but this fell far short of the notice and request required by the contract, or of establishing a waiver on the part of the plaintiff, or of furnishing a valid excuse on the part of the defendant for not complying with the provisions of the contract. Without attempting to review and consider here the various rulings and refusals to rule to which exceptions were taken, we deem it enough to say, that we discover no error in any of them or in the way in which the case was submitted to the jury. .Exceptions overruled.