City & Suburban Railway Co. v. Thomas C. Basshor & Co. , 82 Md. 397 ( 1896 )

Fowler, J.,

delivered the opinion of the Court.

The City and Suburban Railway Company and Thomas Basshor and Company agreed in writing that the latter should supply the materials for and manufacture and erect five horizontal return tubular boilers of two hundred horsepower capacity each, to be used by said Railway Company at its temporary plant at Waverly, on the York Road. These boilers, it was agreed, should be made in accordance with certain specifications furnished by Basshor & Co., the whole work to be completed and in running order not later than May, 1893. The work was finished and accepted by Railway Company, and the boilers have been used by it for more than a year. A part of the contract price was withheld upon the ground that the heating surface of the boilers was not as great as the contract called for, and to recover the amount claimed to be due them, Basshor & Co. sued the Railway Company in assumpsit on the common counts and recovered a judgment. During the course of the trial six exceptions were taken by the defendant to the rulings of the Court below, five of them relating to the exclusipn of evidence and one to the rulings on the prayers. All of the exceptions, however, except the last named, have been abandoned, and, therefore, the only question we have to determine is whether there was error in granting the plaintaiff’s prayer and refusing to grant the defendant’s first and second prayer and in granting defendant’s third prayer as modified.

By the plaintiff’s prayer the jury were instructed that under the contract given in evidence “ the plaintiffs are not obliged to prove, in order to recover, that each boiler has 2,300 feet of heating surface, nor that each of said boilers will give two hundred horse-power with the best economy in the consumption of coal.” The contention of the defendant,- as set forth in its second and third prayers, is based upon a construction of the contract the exact reverse of that contended for by the plaintiffs and contained in their first prayer, and to support its construction the defendant relies upon the following clause which will be found in the last paragraph of the specifications furnished by the plaintiffs, as follows: “ At the water tube boilers standard factor (iij/i sq. ft. per H. P.), these boilers will give 1,000 H. P. and we guarantee them to stand 135 lbs. working pressure.” The defendants contend that the true meaning of this clause is that the plaintiffs were to furnish five boilers of the kind described in the contract, which, when measured by the standard factor of eleven and one-half square feet'of heating surface per horse-power, would give a heating surface of twenty-three hundred square feet for each boiler. The plaintiffs, however, contend that under a fair construction of the contract in connection with the specifications, they were required only to manufacture and set up in running order five horizontal tubular boilers of 200 H. P. each, and that the amount of heating surface they agreed to furnish for each boiler is clearly shown in the specifications, which are a part of the contract. Testimony of experts was taken to show what is the true meaning of the terms used in the clause in question ; but, as might have been expected, the witnesses did not agree. In our opinion, whatever doubts may exist as to the construction of this particular clause standing alone, the meaning and intention of the contracting parties is clear when the specifications, on which the contract is based, are also considered. As one of the witnesses said, “ the amount of heating surface in the boilers is in the figures given in the specifications, and it is simply a matter of calculation from these figures.” Another witness testified that, notwithstanding the clause we are considering, it is very clear from the specifications that the boilers which the plaintiffs agreed to furnish were not to have the heating surface which is now demanded by the defendant. The construction relied on by the defendant cannot be maintained without putting aside a most important provision of the contract. Manifestly it would be contrary to all rules of construction to allow one of two or more doubtful constructions of one part of the contract to prevail over and nullify the manifest intention of the parties as declared in another part of the contract. It being conceded that the boilers, as to heating surface, are according to the specifications, the plaintiffs must be held, in this respect, to have complied with their, contract.

But in the next place it is insisted by the defendant that the plaintiffs were bound under the contract to furnish boilers that would give two hundred horse-power with the best economy in the consumption of coal.

We find in the contract itself no warrant for this contention. It is clear from the testimony that the power agreed to be given, viz., 200 H. P. for each boiler, was in fact obtained, but without regard to the amount of coal used. It will be observed, however, that the contract contains no stipulation as to the quantity of fuel it would be necessary to consume to get the stipulated power, and we are asked to introduce such a stipulation into the contract merely because we do not find it there, and in order to sustain the defendant’s suggestion of an implied warranty. But there is no implied warranty under the facts in this case, for it is well settled “ that where a known, described and defined article is ordered, even of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the thing be actually supplied, there is no implied warranty that it shall answer the particular purpose intended by the buyer; in such case the purchaser takes upon himself the risk of its effecting its purpose.” Rasin & Co. v. Conley, 58 Md. 60; Rice v. Forsyth, 41 Md. 389; Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510. If the question as to economy of fuel had been in the minds of the parties, or of either of them, it would have doubtless been incorporated in the contract. But they are silent in regard to it, and we are asked to supply the alleged omission. But this we cannot do. As was said by the Supreme Court of the United States in Seitz v. Brewers' Refrigerating Co., supra, “ to hold that mere silence opens the door to parol testimony would be to beg the whole question.” In this case we have seen the boilers had the stipulated heating surface and gave the required horse-power, and under the contract given in evidence the defendant cannot set up as a defence the fact, if it be a fact, that the stipulated power cannot be obtained without an undue consumption of fuel. Hence, it follows that the plaintiff’s first prayer was properly granted and the defendant’s first and second were properly refused.

(Decided January 9th, 1896.)

We think there was no error in granting the defendant’s third prayer as modified. By it the jury were instructed that if their verdict should be for the ■ plaintiff, it must be limited to the actual value of the boilers, less the amount paid by the defendant, and must not be based on the agreement to pay a stipulated price for the boilers contemplated by the contract. To this prayer the Court added the following, viz.: “ But the jury are not precluded from considering the same as part of the evidence in the case,” which is the modification complained of by the defendant.

The theory of the plaintiff’s action is, that having performed their part of the contract, and there being nothing left to be done by the defendant except to pay the contract price, they were not bound to sue on the contract; but were at liberty to sue on the common counts for the balance due. Ridgley v. Crandall, 4 Md. 435; Appleman v. Michael, 43 Md. 273. The contract was offered in evidence without objection, and being properly before them, the jury had a right to consider it, as the Court told them, as part of the evidence in the case. And it would seem that the Court below might have properly gone further and could have instructed the jury, as was held in Appleman v. Michael, supra, that the proper measure of damages in a case like this is the rate of compensation fixed by the contract.

Finding no reversible error, the judgment appealed from will be affirmed.

Judgment affirmed.