Mallers v. McKenzie Furnace Co. ( 1907 )

Mr. Justice Baker

delivered the opinion of the court.

The decision in this case turns mainly upon the construction to be given to the contract. As to the circumstances surrounding the parties and the objects they had in view in entering into the contract, there is no controversy. The stoker in question is a device intended to control and regulate the burning of coal in the furnace under a boiler. It consists of a series of transverse grate bars, each fastened at each end to an endless chain which carries the bars from the front end of the furnace to the' rear end, then down over a wheel, back to the front end and up over another wheel, to pass again over the same circuit. The coal is put on the bars of the stoker at the front end of the furnace and is intended to be all burned when it reaches the rear end. In all water tube boilers baffling tiles are used to direct the course of the heat currents, technically called gases. These gases travel from the front end of the boiler to the back end and vice versa. There are at least two kinds of baffling tiles, known as “C” and “D” tiles, taking their names from the shapes of the two letters. These tiles are movable, not fastened to any part of the boiler, and to take out a row or even to take out all the tiles and put other tiles in their place is the work of but a few minutes. The baffling tiles are put in after the boiler is put in place. The amount and arrangement of the baffling tiles required in a boiler to produce the best results depend upon the draft and other local conditions. If the openings in the baffling are toó many or too large the efficiency of the boiler is decreased. If the openings are too few or too small, the efficiency of the boiler is also decreased. The tile is the older and more generally used kind of tile and was the kind of tile the boiler company originally intended to put in the boilers in question. While the boilers were being constructed a change of tile was decided upon and the “C” tile was put in instead of the “D” as first intended.

The contention of the defendant is that the plaintiff knew when the test was made the kind, amount and arrangement of the baffling in the boiler; that the plaintiff, to fulfill its guaranty of efficiency, was bound to develop, upon that test, 312 horse power in the boiler in the condition the boiler was at the time of the test; that defendant had the right to buy boilers with the kind and quality of baffling in them that was in the boilers in question, arranged as the baffling was then arranged in those boilers; that he did not agree to change the baffling; was under no obligation to the plaintiff to permit plaintiff to change the baffling, and when upon the test the guaranteed horse power was not developed, he had the right, which he exercised, to reject the stokers.

If the contract be given the construction thus contended for, the defendant would be entitled to a peremptory instruction to the jury to find the issues for him. But with the contention of appellant we cannot agree. If the kind, amount and arrangement of the baffling was the same in each Erie City water tube boiler of the same rated horse power, then the parties by specifying and agreeing upon an Erie City boiler, would be held to specify and agree upon the baffling-in such boiler. But the evidence clearly shows that the baffling is not the same in each Erie City boiler; that there are in use at least two kinds of baffling; that the kind, amount and arrangement of the baffling in each boiler depends upon the draft and other local conditions and must necessarily be determined by actual trial. In this case the defendant, a few days after he took out the stokers, while firing by hand took out one row or section of tiling and the boiler worked better; later he took out the “C” tile and put in “D” and took out another row or section of tiling and the boiler worked still better, but it was not until all such changes in the baffling had been made and the water in the boiler lowered that the boiler worked satisfactorily.

We do not hold that the defendant under this contract was bound to furnish a boiler that when fired without the stoker would develop its rated 240 horse power. We do hold that the defendant under the contract was bound to furnish the boiler specified in the contract in such condition and with such kind, amount and arrangement of the baffling in it, that when fired without the stoker, it would work normally; work in the manner and with the efficiency that such boiler usually works when so fired.

The contract does not provide that the efficiency of the stoker shall be decided and determined by a single test, but provides that the final payment shall be made when the machines are: “Completed, tested and accepted, considering that 30 days after completion to be a satisfactory time for the acceptance of the above machines.” The failure of one -of the two stokers on a test made within five days after its completion to develop the guaranteed horse power did not, in our opinion, give the defendant the right to reject the stokers. Defendant refused to permit plaintiff to make any chang’e in the baffling, and prevented any further action on the part of the plaintiff.

“A party who prevents a thing being done within the time stipulated will not be allowed to avail himself of the non-performance he himself occasioned and then avoid the agreement.” Lehman v. Webster, 209 Ill. 264, 268.

Giving to the contract in question the construction we think must, under the facts and circumstances shown by the evidence, be given to. it, it was, in our opinion, a question for the jury whether the defendant gave the plaintiff a fair and reasonable opportunity to test the efficiency of the stoker. Upon that construction of the contract the court did not, in our opinion, err in its rulings upon evidence or upon instructions. Indeed, the objection urged to the rulings upon evidence and instructions are based upon a different construction of the contract from that we think must be given it.

The judgment of the Circuit Court will be affirmed.

Affirmed.

Judgment affirmed, 231 Ill. 561.