Fitch v. Woodruff & Beach Iron Works

29 Conn. 82 | Conn. | 1860

Storrs, C. J.

We do not think that any of the exceptions of the plaintiff to the rulings of the court below entitle him to a new trial. They will be noticed in their order.

1. This action was brought only upon the written agreement which is set out in the declaration; and the information given by the plaintiff to the defendants in regard to the old boiler in the mill of the former and his wants in respect to the new boiler, and the assurances of the defendants as to the kind or quality of boiler which they could make for the plaintiff, which were communicated to the latter during the negotiations between them which preceded and resulted in the making of that agreement, were merged in the agreement and therefore plainly inadmissible.

2. As there was no stipulation in that agreement requiring that the boiler to be made by the defendants should be as efficient as the'plaintiff’s old boilers in operating his mill, the evidence offered by the latter to prove the relative efficiency of the old and new boilers was also inadmissible, notwithstanding it was alleged in the breach in the first count of the declaration that the boiler made by the defendants was not as efficient as the old ones; for that allegation, having no reference to any of the requirements of the agreement, was plainly immaterial and of no avail for any purpose.

3. If an exception had been taken by the plaintiff specifically to the evidence adduced by the defendants to show that the iron, of which the boiler made by them was composed, was manufactured by Abbott & Co., and what their reputation was as manufacturers of boiler iron, it would be difficult to justify its admisssion; but as it was introduced together with evidence in regard to the actual quality of the iron used by the defendants, which was clearly admissible, and was not objected to specifically, but only by way of a general exception to the whole evidence, a new trial, under the rule established by us on that subject, should not be granted for its admission. As part of the evidence was admissible, it was the duty of the plaintiff to make a distinct objection to the particular portion of it which was not so. Reg. Gen., 18 Conn., 574, ch. 16, § 2.

4. The admission of the testimony of Woodruff was too obviously proper to require vindication.

5. The testimony of Hills, as we understand that part of the motion which relates to that subject, was, in our opinion, admissible. It was plainly not offered by the defendants for the purpose of showing that the boiler made by them was set in a proper manner. It does not appear that the parties controverted on that point. But the question was whether, if it was improperly set, it was owing to a want of skillfulness on the part of the defendants, or the interference of the plaintiff with them in setting it. There does not appear to have been any question on the trial, and therefore there can be none made now, but that, if the defendants were ready and offered to fulfill tins part of the agreement, they would not be liable if they were prevented from doing so by the acts of the plaintiff. The motion states that Hills was one of the masons employed by the defendants who assisted in setting the boiler. His testimony tended to show that he had had much experience in that branch of business and was competent to perform the duty thus assigned to him. We think that this evidence was admissible in order to prove a readiness and effort by the defendants to fulfill this part of their agreement and that it would have been performed by them but for the interference and prevention of the plaintiff, and that this was a proper topic of inquiry.

6. The question of waiver in regard to the time when the boiler was delivered to the plaintiff was properly submitted to the jury as one of fact. If it be conceded that there may be cases where the declarations or acts of thé parties to a con tract are so express or unequivocal that it would not only be practical and competent, but even the duty of the court to determine as a matter of law that certain rights had been waived and could no longer be insisted on, those cases are very, rare; because a question of waiver is one of intention, and most usually depends on acts or declarations which, in regard to their character, are of an inconclusive or doubtful nature, and furnish only evidence of intention and grounds of inference and deduction, which it is the appropriate province of a jury only to consider ; and this was the character of the evidence on this subject in the present case. A reference to the communications between the parties, in their letters, will show that they contain no express waiver by the plaintiff of the stipulations in the agreement on which he relies, and therefore the court below could not, as a matter of construction, pronounce upon them on the claim of waiver; but yet the import of the language used by them, in connection with the subsequent acceptance of the boiler from the defendants and the charge for the delay in its delivery, was such as to furnish a ground for an inference that it was the intention of the plaintiff to extend the. time for its delivery and not to insist on damages for the delay except in one particular; and whether the evidence was sufficient to warrant such an inference could be determined only by the jury. If, however, it was the duty of the court to dispose of the question of waiver in this case, we are clearly satisfied, without taking time to scrutinize the evidence, that it could properly have come to no other conclusion than the one to which the jury arrived; so that on that point the plaintiff has sustained no injury.

A new trial therefore is not advised.

In this opinion the other judges concurred.

New trial not advised.