Dubois v. Bigler, Young & Co.

| Pa. | Oct 4, 1880

Mr. Justice Trunkey

delivered the opinion of the court,

Bigler, Young & Co. agreed to construct two engines, furnish all pipes, connections and other necessary fixtures, and put the same in place and working .order, so that “said engines and fixtures, when set up, shall constitute everything necessary to make them complete, both as to appearance and capacity.” They furnished the drawings themselves and guaranteed that the materials, workmanship and working of said engines should be first class and satisfactory to Dubois. On his part Dubois was bound to prepare a good foundation, fit for the machinery, and convey the machinery from the shops to his mill site. The contract does not set forth the location' of the site, nor kind of mill, but the parties understood the use to which the engines were to be put, and they were placed on the foundation prepared by Dubois. One party alleges the engines were entirely right and the foundation a complete failure; the other, that the foundation was perfect and the engines wholly unfit for the purpose of their construction. Both agree that the engines, on that foundation, were useless.

From the'whole case, as it is presented, the main question is, whether the defect was in the foundation or engines. Upon this a large amount of testimony was taken, mostly as to the character of the foundation, and painfully conflicting. It is represented on one hand that the foundation was firm as if standing on a rock; on the' other, that it was unstable as if resting on fen-land. Young, one of the plaintiffs, testified that such a double engine as that would require a more substantial foundation than one that stood horizontal, because the heavy working parts are so far from the top of the foundation — so much further than an ordinary engine — it requires a very strong, substantial foundation. Certainly it was reasonable that the constructor of the engines, which required an unusually strong foundation, should give some directions respecting the building of it, and if he did it was competent to prove what they were, and that it was built accordingly. Such proof does not alter the written agreement, which only expresses that the defendant was to prepare the foundation’; but it is consistent with his obligation to prepare a good one, and not place it on spongy earth or other unfit substance. Had the directions been given and not followed, it would be pertinent evidence for the plaintiffs in a dispute concerning the strength of the ground-work, and if followed, it is equally competent for the defendant. The plaintiffs agreed to furnish and set up described engines, with a warranty, and if the kind of foundation was stipulated, but omitted in the writing, it was a part of the contract which the defendant had no right to violate. If well built in the manner they directed, and placed on fit substance, he performed his part. The .defendant’s third offer should have been received.

We are also of opinion that the offer set forth in the fourth assignment was admissible. The jury would consider whether the foundation had been so changed as to affect its solidity, also if it was affected by the settling of the earth around it, also if the strain was equal to or greater than before, and thus determine the weight, if any, to be given to the proposed evidence. Whether the foundation had been changed was disputed; and so was the allegation that the engine caused as great a strain as did those furnished by the plaintiffs. But the grave question was, whether the foundation oscillated at all. Young testified that he saw it rock, swing backwards and forwards, lifting first one end and then the other; Dubois, that he never could discover that it moved, and never had an idea that it was possible for it to move; and each produced adminicular witnesses. If in a few months thereafter, when subjected to as severe a strain, that foundation neither moved nor trembled, the fact is pertinent in an effort to ascertain the truth.

The fifth assignment is not well taken. No objection was made to proof of the substance where the foundation stands, but to that thirty feet distant. There is no ground for the defendant to complain of restraint in his proof of tests, of the character of the substance under and near the foundation, and of exhibiting specimens to the jury.

In their history of the case the plaintiffs .admit that their contract with defendant was “ for a double engine for a large saw-mill that he intended to build in Brady township, Clearfield county.” To that subject the contract relates, and it is necessary to know the subject in order to intelligently decide whether the working of the engines and fixtures was satisfactory. Had the admission been made below as it is here, in absence of pretence that the mill differed from their understanding of what it should be, there would have been no need of parol evidence of the matter in defendant’s second offer, but it was not, and it was error to reject the offer: Barnhart v. Riddle, 5 Casey 92; Clarke v. Adams, 2 Norris 309. The proposed proof contradicted nothing in the writing, and called for no conversation other than necessary to establish the intended use of the machinery.

The defendant’s first and second points should have been affirmed. The engines and fixtures were for a particular purpose, to be made and placed by plaintiffs according to their drawings and specifications, the working of which was guaranteed to be first class and satisfactory. Materials, workmanship and plan were embraced in the engines and fixtures, which were warranted to do good work as the motive power for a large saw-mill. Their working ought to have been reasonably satisfactory, and if it was not because of a defect in the plan, or workmanship, or materials, there was a breach of the warranty. The plaintiffs contracted for the successful working of the machinery and are liable for its failure, unless success was prevented or hindered by the act or .default of the defendant.

Dubois sued Bigler, Young & Co. in the Common Pleas of Lycoming county, to recover damages on the contract of December 24th 1872. That action was referred under the compulsory arbitration law, and the arbitrators filed an award of no cause of action, from which the plaintiff appealed. When the cause came to trial, after the jury were sworn, in open court, the plaintiff suffered a voluntary nonsuit, and judgment accordingly. Section 25, Act 1836, Pamph. L. 722, provides, “ That the court may, after appeal, allow the plaintiff to suffer a nonsuit, with like effect as if the cause had not been referred as aforesaid, if the special circumstances of the case shall appear to require it.” What special circumstances moved the court to allow the nonsuit do not appear, and it would be immaterial now if they did. It is enough that it was allowed. The record is in these words : “ Plaintiff suffers a voluntary non-suit. Judgment accordingly, per cur.” This judgment unmistakably refers to the plaintiff’s act and can mean but one thing, namely, that his act was by leave of the court. The acts of the plaintiff and of the court were at the same time and in agreement. It follows that the award was defeated : McKennan v. Henderson, 5 W. & S. 370. In Girard Bank v. Schuylkill Bank, 8 W. & S. 242, the opinion relates to the consideration of a motion for leave to enter a nonsuit, and does not touch a case where it has been suffered and allowed by the judgment of the court. The sixth assignment must be sustained.

It is unnecessary to remark on any of the remaining assignments, in which we discover no error.

Judgment reversed, and a venire facias de novo is awarded.