Tasker v. Crane Co.

| U.S. Circuit Court for the Northern District of Illnois | May 2, 1893

JENKINS, Circuit Judge.

The plaintiffs, on the ¡12th of July, 1890, contracted to furnish and deliver to defendant 20 miles of 8-mdi standard nominal weight, line pipe, made from soft iron free front blisters and oí,tier imperfections and guarantied Lo ataúd a working Hue pressure of 1,000 pounds to the square inch when proved and tested in. line, and proved light in the Hue, widen working test ivas to foe made with reasonable promptness, '¡"lie pipe was intended to be used in ¡lie construction of the gas line irouf tiie interior of Indiana to the city of Chicago, to foe constructed by ¡.lie Columbus Company, and was to foe delivered not later than ffejiiomfoer 1C, 1890, at railway stations to be designated by the Crane Company, and was so, in fact, delivered prior to that date. There was a subsequent parol agreement tor the delivery oí a certain quantity of 6-melt iron line pipe and á’-indt iron line pipe, Ioucluing which no question was made. In. August, during the progress of delivery, the plaintiffs were nodded that certain pipe arrived in a bad condition, and t;y iheir direction the pipe was laid aside, and, after that, returned, and accounted for by ¡he plaintiffs; and the defendant was then instructed that it should not use one length, of the pipe unless it was in perfect condition, but should return it. The pipe of a number of other manufacturers was likewise used in the coiislruction of the line, and all the pipe appears to have been laid indiscriminately, without regard to whether it was manufactured by one party or another. It was so laid to suit the convenience of the coastruction company, and according to the receipt of the pipe. In September some sort of an air test was made by the construction company in the presence of an officer of the Crane Company, of some miles of the pipe in line, and defects and leakage were found. But whether that leakage occurred in the pipe of the plaintiffs or in the pipe furnished by other manufacturers is not fully disclosed. In 1891 further air tests were made, and leakage then found, which was subsequently remedied by the construction company by the removal of the collars of the joints, and the substitution of another and different collar. Of these tests, or their result, no notice was given to the plaintiffs, and they had no knowledge that any such tests had been made until a time subsequent to the commencement of this action. All the pipe manufactured by them was subjected at 'the manufactory to a hydraulic test of 1,200 pounds to the square inch, and the pipe found to be perfect.

Whether such pipe, when laid in line, will prove sufficiently tight for the purposes for which it was intended, depends upon various considerations, — the strength of the pipe and of the joints and the threads, the character of the joint or collar, and the uniformity of the taper to the thread on the pipe and in the collar, and also upon whether the pipes are properly jointed and screwed together, the cleanliness of the threads when the pipes are united, and upon whether the surface upon which they are laid is even. At the time that the defendant forwarded to the plaintiffs the contract for execution, it desired that the plaintiffs should adopt the extra heavy coupling as made by the National Tube-Works Company for their standard or line work. It informed the plaintiffs that it had requested the tube-works company to forward to the plaintiffs a sample of this coupling, and requested the plaintiffs strictly 'to observe the gauge, eight threads to the inch, with five eighths of an inch taper, etc. This sample was received, and the couplings were made in strict conformity with the sample.

The defendant claims that it is entitled to offset against the amount due the plaintiffs for the pipe the expenses incurred in removing these collars and the substitution of other collars, such as were designed by the construction company, and which were used eventually in the construction of the line. I am of opinion that this offset ought not to be allowed. I am by no means satisfied that the leakage found can be attributed to any defect in the pipe or the threads. In view of the fact that certain defective pipes were found, and of the positive instruction of the plaintiffs to return all defective pipe, and to permit none to be laid, and that no further complaint of defective pipe was preferred, it is very cogent to my mind that there was no such defective pipe of the plaintiffs’ manufacture found. If the leakage occurred by reason of the peculiarity of the collar used, it need only be observed that the collar was in exact accordance with the sample which the defendant furnished and desired to be used. It may be said also, with respect to the tests applied, that it is very peculiar that not only was no notice given to the plaintiffs when the tests were to be made, nor were they even notified of the result of the tests until long after this litigation had ensued. The contract does not indicate the character of the test that was to he used. The proper construction, therefore, to be given the contract is that the parties intended that test which was usual and customary in the trade, with respect to pipe to be laid for the purpose of the conveyance oí gas. The evidence satisfies me that the usual and customary test was the hydraulic test, and that this pipe came up to the standard required by the contract under such test. Where different manufactures of pipe are used, it may be difficult to prove which make fails to come up to the required standard, but this burden of proof is upon the defendant, and it has failed to satisfy me that the defect can be justly attributable to the plaintiffs’ pipes. The severe test applied in 1891 was also not made with reasonable promptness within the provisions of the contract. Upon the whole, there must be a judgment, for the plaintiffs for the amount which the parties have stipulated to he due if no offset should be granted, namely, in the sum of §8,890.71, and judgment for that amount is to he entered for the plaintiffs as of the 29th of April, 189.3.