101 Me. 114 | Me. | 1906
The first case under consideration is an action of assumpsit based on a written contract to recover $10,525.25, the alleged balance of the contract price of certain automatic water- wheel governors and other appliances sold and delivered to the defendant,- and interest thereon to the date of the writ, $650, making a total of $11,175.25. The second is an action on the case brought as a cross action for the recovery of $25,000, damages alleged to have been sustained by the plaintiff from the insufficiency of the appliances which were the subject of the contract upon which the first action is based, and the negligence of the defendant in attempting to install the same in the plaintiff’s mill. The two cases were tried together, as the same circumstances upon which the defense in the first action is founded formed the basis of the cross action, and they come before the law court on report.
The cdntract upon which the plaintiff company sues is in the forin of a written proposal by it, dated at Boston, January 24, A. D. 1901, which was accepted in writing by the defendant company January 29, A. D. 1901.
The contract is as follows :
Great Northern Paper Co.,
194 Washington St., Boston, Mass.
Gentlemen: — We submit the following proposal for waterwheel governing apparatus, to be used in connection with the four (4) grinder water-wheel units in your Millinocket plant.
The specifications, guarantees and agreements, under which we will furnish you the above governing apparatus are as follows :
Apparatus. We will sell you-four (4) of our type "B” gov*117 ernors, and four (4) of our 28 ” balanced relief valves, f. o. b. Boston, Mass., for the sum of Seven Thousand Six Hundred Dollars ($7,600.00). We will also furnish you with the connections necessary to go between said water-wheels and said governors, and the necessary connections for said relief valves, at the cost of the same to us.
Guarantee. The governors and relief valves furnished you under this proposal shall be of our regular standard make and quality, and any parts which develop inherent mechanical defects within two months from the time when they are put in operation will be replaced by us without charge. - .
These governors are guaranteed to give a more accurate speed regulation than any other make.
Purchase. In consideration of the above guarantee you hereby agree to purchase said governors and relief valves of us at the hereinbefore named price and to pay for the same and the costs of said connections in cash within one month of date of shipping-documents. Also to pay for a man to erect and adjust Said governors and relief valves at the rate of five dollars ($5.00) per day for his time, with his necessary traveling expenses added thereto in cash, when the work is done.
Contract. This contract will not bind the Lombard WaterWheel Governor Company until countersigned by its General Manager, and becomes void unless accepted by you within .one month from the date first hereinabove written. The acceptance of this proposal by you within said time will constitute it a binding contract on both sides if so countersigned.
Yours very truly,
Lombard Water- Wheel Governor Co.,
by Allan V. Garratt, Chief Engineer.
Countersigned,
Lombard Water-Wheel Governor Co.,
by Henry A. Clark, General Manager.
We hereby accept the above, proposal.
Jan. 29th, 1901.
Great Northern Paper Co.,
Garret Schenck, President.
The defendant denies liability on the three grounds following:
1. That it was not to pay for the governors and relief valves absolutely within one month from the date of shipping the same, but only upon .the condition precedent that a suitable man to erect and adjust them was furnished by the plaintiff and that he completed his work within that month. This ground of defense cannot be maintained. The contract was one for a sale of certain goods and the title passed upon delivery to the defendant. This delivery was effected in
2. That it was not liable upon the contract by reason of the negligence of the plaintiff in erecting and adjusting the governors and relief valves. While there is some conflicting testimony tending to show unnecessary delay on the part of Mr. Avery, the man sent by the plaintiff to install the governors, the evidence does not establish the fact of negligence or incompetence on his part.
3. That the contract was not fulfilled by the plaintiff because the automatics governor was not adapted to the purpose for which it was intended, and it claims that the contract contained an implied warranty that the governor apparatus should be suitable for the purposes of the defendant’s plant, that it was the meaning of the specification in the plaintiff’s proposal that the governors were to be used in connection, with the four grinder units for the Millinocket mill, and that it therefore was the duty of the plaintiff to furnish apparatus safe and effective for the purpose and under the conditions for which it was to be used. Leaving for later consideration the question of the suitability of the governors and all questions as to non-contractual obligations of the plaintiff it would be sufficient to say that the existence of this implied warranty as part of the contract is negatived by its explicit terms defining the guaranties of the plaintiff, by the fact that it contains express guaranties which by legal construction exclude all others, and by the fact that the goods sold
This leaves for further consideration the two elements of the claim of the Great Northern Paper Company as plaintiff in the cross action, namely, that the injuries to its mill and machinery were due to the unsuitability and insufficiency of the appliances for the purpose for which they were intended, and to the negligence of the agents of the Lombard Water-Wheel Governor Company in their work of erecting and adjusting the governors.
The defendant, the Lombard Water-Wheel Governor Company after delivering the goods described in the contract to the plaintiff, the Great Northern Paper Company, sent Mr. Avery, one of its mechanics, to erect and adjust the governors and relief valves in the plaintiff’s mill at Millinocket, and he proceeded to erect one of the
The plaintiff insists that the governing apparatus furnished by. the defendant was not adapted to the conditions existing at the mill, and that in consequence of its special and technical knowledge of the appliances manufactured by it and the reliance placed upon the judgment of its engineers, it is responsible for the injury caused by the insufficiency and unsuitableness of the governors and the unsuccessful attempts to install them. The absence of any further attempt to install the governors or any instance of their successful use in connection with grinder units, and particularly under the same conditions as those prevailing at the Great Northern Paper mill where the force to be regulated was water power of extraordinary character, makes it difficult to decide with certainty as to the practicability of this apparatus for the purpose required, but the weight of evidence, particularly that in relation to the final accident to the water wheel case, indicates that this automatic governor could be used under such conditions only with great and constant risk, because from its sensitiveness and the changes of pressure on the grinder wheels it was liable to shut and open the gate with great suddenness and subject the flume to a violent strain from the enormous weight of unelastic water. Apparently no safeguard could prevent a recurrence of the accident which befell the wheel case. It seems to have broken from no inherent weakness but solely from the overwhelming pressure suddenly brought to bear upon it. Assuming, however, that the plaintiff in the cross action is correct in attributing the accident to the unsuit
The conversation at this time indicates that the plaintiff and defendant both considered that the successful use of these governors in connection with the mill plant was a matter which could be ascertained only by experiment. Under these circumstances it cannot be considered that the Lombard Water-Wheel Governor Company assumed any obligation as to its governor appliances except those specifically stated in the contract: It has been already said that the evidence is not sufficient to charge the injury to the machinery during the first trial of the governor to negligence on the part of Mr. Avery. It is uncertain whether the accident to the .grinders was occasioned by some movement of the governor itself or by an injury to the shaft of the water wheel existing before he took charge of the manipulation of this machinery. The greater weight of evidence, however, indicates that the governor had not been connected with the water wheel gates when the grindstone burst, and that Avery was not in the mill at the time.
But it is strongly contended by the plaintiff in this action, that the bursting of the water wheel ease at the second attempt to adjust the apparatus was directly occasioned by the act of Mr. Lombard the
In Lombard Water- Wheel Governor Co. v. Great Northern, Paper Co. Judgment for plaintiff.
In Great Northern Paper Co. v. Lombard Water- Wheel Governor Co. Judgment for defendant.