48 Pa. Super. 183 | Pa. Super. Ct. | 1911
Opinion by
The plaintiff’s action arises out of a contract entered into with the defendant, by which the latter agreed to furnish to the plaintiff designs for a steel plant to be located in the state of West Virginia, a part of which was to consist of two open hearth basic furnaces. The defendant is an engineering company, engaged among other things in the preparation of plans for iron and steel mills and furnaces, and undertook to design the plans for the plaintiff’s .works and supervise the construction of the same to the extent required by the plaintiff for a consideration of $5,000. The plaintiff’s attention was called by the defendant to a pair of furnaces in New Jersey built according to plans designed by the latter, which furnaces were working successfully and were stated by the defendant to be about what the plaintiff needed. It was accordingly agreed by the defendant that it would: “furnish all necessary working drawings for a pair of 25 ton basic open hearth furnaces similar to those we constructed for the C. Pardee Works at Perth Amboy, N. J. This will include the furnaces with their necessary flues, valves, stacks, charging and tapping platforms, casting pit, bottom plates, runners, fountains, casting ladle and stopper rig, ingot moulds, etc., — in fact everything necessary to make a complete open hearth furnace with its' necessary casting arrangements and other equipment such as referred to above.” The contract covered plans for other parts of the plant to be erected but they are not involved in the present action. The plaintiff’s allegation is that the working drawings provided by the defendant and according to which the open hearth furnaces were constructed were carelessly and unskillfully designed and impractical in application, in several respects material to a successful operation of the plant; that by reason of this failure
The case is not so clear as to the competency of the witness, Calder, who was offered as an expert and whose testimony was excluded. The witness had had experience in the construction and rebuilding of some open hearth furnaces as a master bricklayer and finally as a superintendent, but his experience was not extensive and as the question of the admissibility of his evidence is primarily one of discretion for the court we cannot say that his capacity was so clearly shown that the court should be found to have erred in rejecting his testimony. His knowledge was of a practical kind and limited to the field of his experience and while the argument in support of his qualification is persuasive we are not satisfied that the judgment should be reversed on this account.
Another phase of the case requires consideration. The plaintiff contended that inasmuch as the defendant had undertaken to design furnaces similar to those erected
The judgment is reversed and a venire facias de novo awarded.