29 Wash. 292 | Wash. | 1902
The opinion of the court was delivered by
The respondent is, and during the year 1899 was, a corporation, and at said time was operating a foundry and machine shop in the city of Seattle, and was manufacturing and selling castings of iron and other metals, and dealing in manufacturers' supplies generally. At the time above mentioned the appellant was, and still is, a corporation having its principal place of business at Seattle, and was then installing and equipping a power plant a.t Snoquaimie halls, Washington, to be operated by water power, with a view to generating electric power for commercial purposes. In erecting its power plant as designed, it became necessary for appellant to have certain castings constituting a device or “system” for regulating the flow of water to its water wheels at its power plant. These castings consisted of certain “regulators,” each composed of a “regulator box,” “two leaves,” and certain other appliances in the interior thereof, and certain elbows and pipes, termed “connecting pieces” or “filling-in pieces,” one such elbow and connecting piece accompanying each regulator. The leaves were to be suspended from an iron bar or rod, and were intended to regulate the flow of water through and from the regulator box by opening and closing as required. The elbow was designed to rest on the top of the regulator box. It was rectangular at its base, and 'circular at the top, where it was connected with the filling (or receiving) pipe, and consisted of two pieces. Appellant had four separate water wheels, and contemplated putting in a regulator, elbow, and filling piece for each wheel. . Certain drawings or “sketches” for these castings were submitted by appellant to the respondent, and the
The complaint, after stating that the plaintiff and the defendant, respectively, were corporations, and specifying the business in which each was engaged, alleged “That between the first day of October, 1899, and the first day of February, 1900, the said plaintiff, at the special instance and request of the defendant, and upon its order, sold and delivered to. said defendant goods., wares, and merchandise and manufacturers’ supplies of the reasonable value of $12,203.13, and for which the said defendant promised and agreed to pay the plaintiff the sum of $12,-203.13, and also, at the special instance and request of defendant, advanced cash for freight and drayage charges on the same, necessary for the due delivery thereof, in the amount of $46.05, making a total of $12,249.18.” “4. That no part of said sum has been paid, except the sum of $5,749.10, and there is now due and owing from the de>fendant to the plaintiff thereon the sum of $6,500.08, with interest at the rate of seven per cent, per annum from the first day of February, 1900.” Judgment was demanded for said last mentioned sum. In response to this complaint the defendant, appellant here, demanded, in writ
Numerous witnesses were examined, and a large amount of documentary evidence was introduced upp-n the trial,, but the evidence was mainly directed to the questions (1) whether the castings were made absolutely in accordance with appellant’s own design and directions, and whether such design was subject to modification by appellant as to-the thickness of the walls of the regulators, and other matters affecting their structure and strength; (2) whether or not the respondent guarantied that the regulator boxes, and the elbows and filling pieces accompanying the same,, should stand a cold-water test of 300 pounds pressure to-the square inch, or a pressure of 125 pounds to the square inch under working conditions, or both; and (3) whether the breaking of regulators Nos. 1 and 2 was due solely to-the steady working pressure that they were expected and understood to stand, or to the defective operation of the interior leaves of the regulator, and whether the cold-water tests applied to' regulator No. 3 and to its elbow, under which they broke, were made by proper methods and under proper conditions, or were such as to subject them to a strain greater than 300 pounds to the square inch. There
After testimony had been introduced at the trial of the cause as to the original design of the regulators by appellant, the design suggested hy the respondent, the breaking of the castings made according to- appellant’s directions,, the making of new castings to replace the broken ones, the changes in the design of the regulators hy appellant, the making of regulator Ho, 3 according to the new design, the furnishing of certain “test pjlates“ hy the respondent, and the manner of testing the same, and as to some other minor-matters, the respective parties, hy their counsel, “in order to save time in the formal proof of the items of the account sued upon,” stipulated as follows:
“The defendant stipulates and admits that all the labor and materials charged in the account were performed and furnished in the construction of articles furnished hy the plaintiff to the defendant, and that the. charges for labor and materials therein specified were at the then prevailing rate for such work and materials at Seattle, and that all*300 the articles charged as having been furnished to the defendant by the plaintiff were so furnished and delivered; the defendant reserving all questions as to whether said labor and materials were performed and furnished and said articles were furnished and delivered in pursuance of contract for furnishing of the regulators, elbows and filling pieces mentioned in the pleadings, but admitting that all thereof were so1 performed, furnished and delivered either in pursuance of said contract or in pursuance of request or order therefor otherwise given.
“The plaintiff stipulates and admits, in return, that among the items charged in the bill there are included sundry charges aggregating the sum of $530.35 for four testing plates which were manufactured for and furnished to the defendant by the plaintiff, and that said plates were plates requested by and furnished to the defendant for the purpose with reference to which testing plates were mentioned in the letter of April Yth from the plaintiff to the defendant, the plaintiff reserving, however, all questions as to the place at which and the persons by whom the letter of April Yth contemplated that the plates therein mentioned should be used in testing; and the plaintiff further stipulated that there are included in said account sundry items aggregating, $239, charged for the casting and machining of a new side and other new work for regulator Ho. 1, furnished to the defendant to take the place of one side of said regulator Ho. 1, which had broken; and the plaintiff further stipulates and admits that there are included in said account sundry items aggregating $1,526.94, which are charged therein for necessary labor and materials performed and furnished in the making of regulator Ho. 3, which was furnished by the plaintiff to the defendant; and the plaintiff further stipulates and admits that there are included in said account sundry items aggregating the sum of $896.43, which are charged therein for labor and materials performed and furnished in the making of the elbow furnished to the defendant to accompany regulator Ho>. 3; and the plaintiff further stipulates and admits that there are included in said account sundry items*301 aggregating the sum of $155.70 for labor performed in tbe making of a part of regulator bo. 4 wbicb was so partly made in pursuance of tbe defendant’s order of October 11th to make regulators bos. 3 and 4, and wbicb was intended to be completed and furnished to tbe defendant in pursuance of said order, but work upon wbicb was stopped in January, 1900, upon tbe order of tbe defendant.
“The defendant, in connection with this stipulation, reserves all questions as to whether or not, if tbe plaintiff is entitled, under tbe law and tbe evidence, to1 make any charge for said regulator bo. 3 and said elbow bo. 3, respectively, tbe plaintiff is entitled to' charge for tbe same respectively, said items of labor and materials aggregating tbe respective sums last aforesaid, instead of tbe contract prices in pursuance of tbe plaintiff’s letter of April 7, 1899.
“Tbe plaintiff admits for tbe purposes of tbe defendant’s case, that regulator bo. 1 was furnished by tbe plaintiff to tbe defendant early in June, 1899, and was charged to tbe defendant at tbe contract price of $645 on June 2, 1899, and that tbe amount of said charge was paid by tbe defendant to tbe plaintiff on July 30, 1899; and, further,, that tbe elbow and filling piece to accompany regulator bo. 1, referred to in tbe evidence as ‘elbow bo. 1,’ were furnished and delivered by tbe plaintiff to' tbe defendant on July 10, 1899, at tbe contract price of $966, and that tbe amount of said charge was paid by tbe defendant to tbe plaintiff on August 25, 1899; and, further, that said payments above mentioned are not included in payments above admitted by tbe plaintiff in its complaint to have been made by tbe defendant; and tbe defendant admits that tbe said sums charged therefor, towit, for said original regulator bo. 1 and elbow bo. 1 and filling piece, are not included in the items charged in tbe plaintiff’s complaint.”
A verdict was returned in favor of tbe plaintiff for tbe full amount demanded in tbe complaint, including interest thereon up to tbe date of tbe trial. Tbe defendant moved for a new trial upon several grounds, among wbicb were
During the trial in the court below there was, as already intimated, a controversy as to whether the design ■of the regulator box submitted by the defendant to the plaintiff was adequate to secure the required resistance •to internal pressure; whether the plaintiff was required to construct such box absolutely in. accordance with that design, or whether the appellant was at liberty, under the .-agreement, if it so desired, to modify said design as it might deem necessary to secure greater strength, but without affecting the mechanical working of the structure ; and as to whether the regulator box, as designed by appellant and manufactured by respondent, was guarantied by thei latter to stand the required degree of resistance to-internal water pressure under ordinary working conditions. And the respondent was permitted, over the objection of the appellant, to introduce in evidence before ■the jury two wooden models, one of which, according to ihe evidence, exactly represented the regulator box, on a reduced scale, actually made by respondent, as designed by the appellant’s engineer, and the other of which represented, on a like scale, the box as it would have been if made according to¡ the plan suggested by the respondent. 'The object and purpose of introducing the first above mentioned model in evidence was to show to- the jury the plan and character of the structure which Mr. Moran, a witness and the president of the respondent corporation,
It was said by the supreme court of Georgia in Augusta & S. R. R. Co. v. Dorsey, 68 Ga. 228, that “A model may be taken by a party to a suit to illustrate any article of machinery involved in the issue on trial, without notice to the opppsite party.” There the admission of the model was objected to on the ground that it was ex parte, and tb at there was no notice of the intention to take it,; and that is one of the objections urged here to the admissibility of the models in question. The tendency of the courts is to encourage the use of models to illustrate mechanical devices, as by that means the jury are often enabled to acquire a better understanding of the particular machine or article of machinery involved in the controversy before them than could possihlv be obtained by the unaided testimony of witnesses. McMahon v. Dubuque, 107 Iowa, 62 (77 N. W. 517, 70 Am. St. Rep. 143). See, also, Pennsylvania Coal Co. v. Kelly, 156 Ill. 9 (40 N. E. 938); American Express Co. v. Spellman, 90 Ill. 455; Augusta & S. R. R. Co. v. Dorsey, supra. We are of the opinion that the court did not err in admitting the models in evidence.
It is also insisted that the trial court erred in admitting-evidence of statements made by one T'ingley, one of the engineers of the appellant, to the respondent’s draughtsman, as to the actual working of the regulator box as first
“The admissions and representations made by an agent of a corporation, acting within the scope of his authority, and concerning matters entrusted to him, are binding upon the corporation.” 2 Cook, Corporations (4th ed.), § 72d.
It follows from what we have said that the declarations in question were properly admitted in evidence.
“2. One who agrees to furnish a manufactured article for a special purpose, aud who furnishes it in pursuance of such agreement, is, iu law, iu the absence of a special agreement to the contrary, hound by an implied warranty that the article shall he fit for the purpose to which it is intended by the purchaser to be put, and adequate to the necessary conditions under which it is to> fulfill the purpose, if such purpose aud such conditions were made known hv the purchaser at the time of the agreement to furnish the article to him.
“3. When a manufacturer agrees to make for and sell to a purchaser an article which is intended by the purchaser to be used, and which the manufacturer, when the order is given, knows is to he used, for a specific purpose, and under specific conditions of use, the law implies a warranty on the part of the manufacturer, in the absence of a special agreement or understanding between the parties to the contrary, that the article so made and furnished shall be reasonably fit for and adequate to tbe service for which it is intended, and in which the manufacturer knew, when undertaking to make and sell it, was intended to he used.
“4. When one submits to a manufacturer a design for a machine or appliance -which he desires the manufacturer to make for and furnish to- him, and the manufacturer is informed of the use to which it is intended to- he put, aud the conditions which it must meet in order to perform the intended service, the manufacturer, in undertaking to make and sell such machine or appliance in accordancfwith such design, impliedly warrants its sufficiency for and adequacy to the service to which it is intended to he put, under the necessary conditions of that setcvice, unless he objects to such design'as inadequate, or protests against it, or other-wise expressly relieves himself from responsibility.
“5. When a manufacturer has made a contract with a customer, agreeing toi furnish a number of duplicate*307 articles of a specified design or character at a specified price for cash, and the customer, after one or more of such articles have been furnished in pursuance of the contract, directs changes to be made in the design or details of the article, — its identity and general character remaining unchanged,- — -the contract remains binding upon the manufacturer as to the price of the article, excepting that the manufacturer is entitled to make such additional charge therefor as will reasonably compensate him for the additional labor and materials necessitated by the changes ordered, and afford, him a reasonable profit thereon. He is not entitled to* disregard the contract, and to charge whatever he considers the reasonable value for furnishing one of the articles under the altered design or detail, unless he has refused to go on with the manufacture thereof after the changes are ordered, on the basis of the contract, and has so notified the customer.”1
It will be observed that instructions numbered, respectively, 2, 3 and 4, requested by appellant, all relate to- the subject of implied warranty. And it is stated in appellant’s brief that they all amount to about the same thing (which is true), with mere variations of phraseology, so that the court might make its choice between the different forms. The court below instructed the jury that there was an express warranty on the part of the respondent that the elbows and filling-in pieces would stand a working pressure of 125 pounds to the square inch when put to the use intended by appellant. Concerning the regulator boxes, the court adopted the theory of the appellant, and instructed the jury as follows:
“As to the regulator boxes, you are instructed that if you believe from the evidence that the defendant submitted to the plaintiff a design for said boxes, and informed the plaintiff of the use to which they were intended to be put, and the conditions which they must meet in order to perform the intended service, then the plaintiff, in under*308 taking to make and sell such, boxes in accordance with such design, impliedly warranted their sufficiency for and adequacy to the service for which it was intended they should be put, under the necessary conditions of that service, unless you find from the evidence that the pjainti.fi: objected to such design as inadequate, or protested against it, or otherwise relieved itself from responsibility therefor,” etc.
It will be noticed that this instruction, as given by the court, not only embodies the substance of each of the three which were requested by the appellant, but is couched in terms almost identical with the language of instruction Ho. 4 requested by appellant And that being truei, the appellant has no just ground of complaint, so far as the instructions in question are concerned. Hor did the court err in refusing to give to the jury the fifth instruction requested by the appellant. Although this request is, in the main, correct and unobjectionable, it is not wholly so, and for that reason was properly refused. It is faulty in that it states, in the closing part thereof, that a manufacturer “is not entitled to disregard the contract, and to charge whatever he considers the reasonable value for furnishing, one of the articles under the altered design or details, unless he has refused to- go on with the manufacture thereof after the changes are ordered on the basis of the contract, and has so notified the customerHone of the authorities cited by appellant support this proposition, and we have discovered none that does. We think the doctrine fairly deducible from the authorities, in cases of this or like character, is that the manufacturer or builder, as the case may be, may go on with the work, and make such changes as may be required by the customer or owner, without objection, and, if the departures from the original plans are such as to result in a new and substantially
We are not convinced by the evidence in this case that regulator box No. 3, as made by the-respondent, was so variant from the original design that the respondent was entitled to treat the contract as abandoned, and to recover the value of all the labor performed and material used in its construction, without reference to: the contract price. The interior leaves were heavier, the suspending bar larger and stronger, and the side and end pieces perhaps thicker, than the original design and contract called for, and a “cross-head” device was attached to! the leaves, buit the identity and general character of the box was not changed. Neither its form nor interior dimensions were varied; and all the respondent had the right to recover as compensation for its construction, as the learned trial court in its charge intimated to the jury, was the contract price ($645), together with the reasonable value of the labor and material necessitated by the change of the original design. But we find no proof whatever in the record
The judgment, being clearly too large by the sum of $881.94, and the interest on that sum found due by the jury, must be modified and reduced to that extent; and the cause is therefore remanded to the superior court with
Rea vis, C. J., and Fullerton and Mount, JJ., concur.