John A. Crowley Co. v. Clark Equipment Co.

HOUGH, Circuit Judge (after stating the facts as above). The evidence made it clear that defendant sent these ingots to a reputable forge, where in the process of forging they developed or disclosed cracks or seams which rendered them unfit for gun forgings. But what was their condition when delivered to defendant was the subject of acute difference of sworn opinion. Plaintiff admitted the existence of “hair-line” cracks on the ingot surface, but averred that it had “chipped out” the same so that the ingot was either “perfect” on delivery, or was made so thereafter, at its expense. There was evidence that such cracks were a necessary result of [60] cooling of metal, and their removal produced perfection, and also that steel of the composition and ingot size contracted for could not resist without cracking the method of forging adopted by defendant. On the other hand, defendant gave evidence that “fine cracks” discoverable by “a more or less careful scrutiny” existed before forging, and under “the hammering process * * * they became larger.” The warranty insisted on is expressed in the order for manufacture given by defendant to plaintiff, and in a nearly contemporaneous letter explaining (as far as it ever was explained by plain writing) what was wanted. The order recites that its acceptance “constitutes a guaranty that all steel furnished' [under the order] will be free from all physical defects.” The letter declares that plaintiff’s “responsibility consists” in furnishing steel “free from surface defects and an unusual amount of pipe”; wherefore (wrote defendant) “please use care; * * * serious surface defects will be cause for rejection of the entire ingot.” [ 1 ] This is the warranty — the “pipe” part of it is now immaterial— and it is wholly contained in contractual writings prepared by one party ; therefore the rule applies that, if there be doubt as to construction, such doubt is to be- resolved1 against the party preparing the form of words. Wilson v. Cooper (C. C.) 95 Fed. 628. [2, 3] It is a warranty of quality, as to which the rule is common knowledge that there must be a substantial compliance, and substantial failure is a breach. When the question of substantial failure or compliance depends on controverted and material facts, such facts are for the jury. The foregoing is not, and indeed cannot be, denied, and the only point properly submitted to us is whether there were any such facts shown, and that is but another way of saying that what plaintiff called “hair-line cracks,” removed by chipping, constituted “serious surface defects.” [4] It seems to us that a very plain jury issue was presented; for the jury “had the right to consider the meaning or sense in which any term was used by the parties as relating to the qualities or qualifications [of steel ingots], and to adopt that sense for the purpose of detennining what was warranted, and wherein the warranty failed” if it did. Bodurtha v. Phelon, 2 Allen (Mass.) 347. The theory of suits or defenses such as this was long ago tersely stated by Lord Tenterden, speaking of an action on the warranty of a horse; his words may be thus modernized: In assumpsit the rule is that you must prove the whole of the consideration, but you need not prove the whole of the promise. The consideration here is that defendant would buy ingots of plaintiff at a certain price, and the promise is that the ingots shall be free of serious surface defects. The very words of the promise need not be laid or proved; it is sufficient to state the substance; if that be proved, it is enough to support the action or defense. But in this case it is quite clear that hair-line cracks chipped out before delivery and serious surface defects are not convertible terms, wherefore the motion to take the case from the jury was rightly-refused. Coltherd v. Puncheon, 2 Dow. & Ry. 10. Some matters of evidence have been discussed; we only note that [61] plaintiff in error complains that certain evidence, though stricken out on its motion, was admitted by error so prejudicial that striking it out could not cure. We think that whatever error was committed was in granting the motion to expunge. [5] The case has been briefed by both parties as if this court were authorized to reverse because the verdict was against the weight of evidence. That no appellate court of the United States has such power in actions at law has been too often said to permit further citations. Judgment affirmed, with costs.