102 F. 669 | 7th Cir. | 1900
This cause was heard at the October session, 1899. - The action was brought by the defendants in error, composing the firm of Burnham, Williams & Co., of Pennsylvania, to recover of the North Chicago Street-Railway Company the price of a steam tramway motor alleged to have been manufactured by the complainants for the defendants, and delivered on or about the 31st day of October, 1892. The original declaration contained a special count and common counts in assumpsit, on which issue was joined by the plea of non assumpsit. For a fuller statement, see the decisions of this court reported in Burnham v. Railway Co., 59 U. S. App. 274, 30 C. C. A. 594, 87 Fed. 168, and Id., 60 U. S. App. 225, 32 C. C. A. 64, 88 Fed. 627. A third trial of the case was had on December 14, 1898, which resulted in a verdict and judgment for the complainants for the sum of $6,175, the amount of their demand and interest, less $300. Numerous errors have been assigned, but it is insisted only that the court’s charge was erroneous ‘in respect to the measure of damages, that there was no evidence adduced tending to prove the contract price, and that the court erred in sustaining the demurrer to the pleas filed by the plaintiff in error to the additional counts of the declaration.
The pleas to which the demurrer was sustained have a peculiar and anomalous position in the record. The trial was had on December 14, 1898, and the verdict was returned on that day, but an entry made on the next day shows an order, by agreement, “that the verdict published herein on the 14th inst. be considered as sealed, opened, and read as of this date.” It is said in the briefs that the additional counts of the declaration were filed after the jury was charged, but it does not so appear by the record. The first entry, of December 14th, the day of the trial, shows the filing by leave of court of “additional counts to the declaration,” which are set out at large. A second and distinct entry shows the impaneling of the jury, the hearing of the evidence, a motion by each party form peremptory instruction overruled, leave to the plaintiffs to file additional counts, objection and exception by the defendant, the retirement of the jury after instruction,, the return of the verdict into1 open court, and the entry by the defendant for a motion for a new trial. The bill of exceptions shows that leave to file
Tt is further to be observed that the pleas which set up the statute of limitations do not present the question which, according to the briefs and fhe argument at the hearing, they were designed to-present;
There was competent evidence of the price of the motor. The contract was that the price should be the actual cost of construction, at the regular rate charged by the complainants for similar work; the total being estimated, as nearly as could be, at about $5,000. The agreed statement of facts shows a letter of November 23, 1892, from the complainants to the president of the defendant, in which they said:
“We have now completed our accounts for the cost of the motor, duplicate of the Carols Belgian motor, as per our letter of March 11, 1892; same amounting to $5,105.00. We inclose invoice accordingly, and shall be pleased to receive settlement in due course.”
The receipt of that letter was acknowledged by the vice president of the company, and no question of the correctness of the statement of the cost of construction appears ever to have been made. The agreed statement of facts does not say that the invoice mentioned in the letter of November 23d was in fact inclosed, and was received by the defendant, but the inference that it was is manifestly reasonable; and even if the letter had contained no reference to an invoice, but only the statement of the entire cost according to the contract, it would have been competent evidence of the fact, in the absence of evidence of further inquiry or question about it on the part of the defendant. It is not necessary to say, and we do not say, that the letter, by reason of being undisputed or unchallenged in respect to the cost, became conclusive proof, like an account stated. It is enough for the present purpose that under the circumstances it was competent evidence upon the point.
The court instructed to the effect that if the motor did not in all respects conform to the model according to which it was to be con- ■ structed, but had been accepted by the defendant, the recovery should be for the contract price, less the cost of putting the machine in proper shape. There was no warranty by the manufacturers that the motor should be adapted to the work or be efficient; and it necessarily follows that damages for a failure to construct in strict conformity to the model should not, and in conceivable cases could not, be estimated on the basis of difference of value. As constructed, or if constructed in strict conformity to the contract, the motor might be of "no substantial value, and the defendant nevertheless bound to pay the cost of construction according to the contract. On any supposi
The judgment of the circuit court is affirmed.