Spring City Brick Co. v. Henry Martin Brick Machine Manufacturing Co. , 1909 Pa. Super. LEXIS 431 ( 1909 )

Opinion by

Henderson, J.,

This action was brought to recover damages from the defendant on an alleged warranty of a brick dryer sold to the plaintiff by the defendant. An action was tried at the same time between the same parties for the balance of purchase money for the apparatus. We are not furnished with a copy of the pleadings, but conclude from the statement of the questions involved that the plaintiff declared on a parol contract of guaranty contemporaneously made with the written agreement under which the dryer was bought.

The first of the questions involved is stated to be “sufficiency of evidence to modify written contract by contemporaneous agreement. A. contracted with B. to purchase a brick dryer to dry a certain number of bricks per day. ‘A.’ claimed that at the execution of the contract ‘B.’ guaranteed that it would do the work. This ‘B.’ denied, etc.” The discussion of the case by the appellant’s counsel covers a much wider field from which it might be inferred that the plaintiff contended for three positions: (1) that there was an express guaranty in their written agreement with the defendant; (2) that there was a contemporaneous parol agreement of guaranty, and (3) that there was a failure of consideration by reason of the inefficiency of the dryer.

The first sixteen and the nineteenth assignments of error relate to the charge of the court; the seventeenth and eighteenth, to the answers to two of the defendant’s points. The appellant made no request for particular instructions and did not submit any points. The assignments cover small portions of the charge and criticise the court in some instances for having said too little and in others for having assumed too much.

We do not understand the five and one-half lines from the charge set forth in the first assignment to have been intended by the trial judge as a statement of the material facts in the case, nor of the attitude of the respective parties under the contract. It is a brief statement of a part of what was done by the parties under the express terms of the written agreement. It cannot be questioned that the building, the boilers, the piping, the valves, the pallets, etc., were necessary parts of the dryer plant and it is admitted that these were to be furnished by the plaintiff. The court did not undertake to say in this connection what the rights of the parties were either under the written or the alleged parol agreement. It was part of an introductory statement leading up to the inquiry what the contract was between the parties and was not an improper reference to the written agreement. Conceding that a representative of the defendant was present to superintend the setting up of the machinery the fact remains that the plaintiff erected the building and put the parts together. Taking into view the whole structure of the charge it would not have been in logical order to discuss the evidence suggested by the appellant at this point in the charge.

The question raised by the second assignment is not within the statement of the questions involved; for this assignment is based on the contention that there was a written agreement of guaranty in the contract, the allegation being that that part of the contract by which the defendant undertook to furnish “the hereinafter described materials for the construction of one latest improved Martin Patent Steam Dryer having a holding capacity of 32,000 wire cut brick calculated on the basis of nine bricks to each pallet” amounted to a warranty of capacity because of the technical meaning of the word “ capacity.” Three witnesses were called as experts by whom it was undertaken to show that the word “capacity” in a contract for a brick dryer has reference in the trade to daily productive capacity. Of this evidence it may be said in the first place that none of the witnesses referred to a contract in which the capacity of the apparatus was restricted and limited to space as in this case. One of them, Mr. Chambers, did not know anything about the trade of selling other brick dryers than tunnel dryers in which he dealt; another, Mr. Briner, did not claim to be an expert and thought the contract ambiguous, the third witness, Mr. Cox, had had experience with but one company and that engaged in the construction of tunnel dryers; and none of them based his opinion on a contract for a holding capacity on a basis of a given number of bricks to each pallet. If the question were before the court under the pleadings the plaintiff failed to show by evidence of this character that there was an agreement in the written contract that the dryer should have a daily productive rather than a containing capacity of 32,000 bricks.

The argument on the third assignment is not elaborated and we do not clearly apprehend the appellant’s view. After a careful examination of the evidence we have not found anything which would justify the conclusion that the court had not correctly stated the situation with reference to the plaintiff’s allegation that there was a parol agreement of guaranty.

The subject of the fourth assignment is a quotation by the court from the contract and a statement of the defendant’s claim with reference thereto. It does not contain any erroneous statement of a legal principle, nor a misstatement of the evidence.

The fifth assignment covers a part of the charge which is pertinent to the very question which the appellant says is involved in the case. The action was founded on the allegation that there was a breach of the contract with subsequent damages. Mr. Boyer for the plaintiff had testified as to the contract under which the dryer was bought and the guaranty. The court very properly instructed the jury that if there was not such an agreement the defendant was entitled to a verdict. The appellant now contends that even if there was not such an agreement there might be an abatement in the price and, therefore, a defense against the payment of the note in the other action. But there is no allegation of deceit; the apparatus was bought after an inspection of a similar plant, and the only objection raised by the plaintiff was that it was not as productive as they wanted and expected it to be. It did, however, dry from 15,000 to 16.000 brick a day and we do not find anything in the case that would justify the conclusion that it is not what it was sold for, to wit: a brick dryer capable of drying bricks. There is no room for the position now taken by the appellant that even in the absence of a guaranty of effectiveness they might defend against the payment of the price.

The sixth assignment is without merit. It is too plain for discussion that if the failure to properly do the work undertaken by the plaintiff was the cause of the inefficiency of the machine the defendant was not responsible for such failure. The plaintiff was to do certain work in the erection of the building and the machinery. If its part of the undertaking was not well done the defendant is not responsible for it. The court does not assume as is supposed that the dryer was to be constructed by the plaintiff, but the proper completion of the plaintiff’s share of the work was presumably essential to the successful operation of the plant, and the fact that the defendant’s representative was there to oversee the work does not alter the situation. There was evidence that it was erected in accordance with the plans furnished by the defendant, and testimony was offered on the other hand that Mr. Boyer had ideas of his own and built accordingly. If he did the defendant cannot be made liable for any failure in his designs.

That part of the charge embraced in the seventh assignment should be read in connection with that which immediately precedes it. The court called attention to the testimony of the plaintiff that the' dryer did not work well; that it would not dry 32.000 brick in the specified time. It was entirely proper for the court then to direct the attention of the jury to the evidence of the defense undertaking to account for the condition of things, and Mr. Mehaiffey, whose testimony was referred to by the court, apparently knew more about it than any of the other witnesses for the defendant for he was the man sent by that company to superintend the construction. When the plaintiff made out a .case of the failure of the machine it was appropriate for the defendant to account therefor, and the court properly directed the attention of the jury to that part of the evidence which presented the defendant's case on this subject

The eighth and ninth assignments are on the same subject and are properly connected with that part of the charge embraced in the seventh assignment. They called the attention of the jury to the defendant's explanation of the defective action of the dryer, but they did not have the effect, we think, to specially impress upon the jury the defendant’s view of the case.

The court had evident reference to the testimony of Mr. Mehaffey and Mr. Schaar in that portion of the charge set forth in the tenth assignment. It is true that Mr. Schaar did not say that Mr. Boyer said he had ideas of his own, but said that Mr. Boyer had ideas of his own. The distinction is not material in that connection and the plaintiff was in no way prejudiced.

We cannot agree with the appellant’s counsel that in the portions of the charge embraced in the eleventh and twelfth assignments the court assumed that the duty of the defendant was performed by furnishing parts of the dryer. He quoted a portion of the written contract, and said: “If they only contracted to sell parts we can come back to the question,” etc. It was the contention of the defendant that it was only to furnish certain parts of the drying apparatus; that the plaintiff was to furnish the other parts; that their original proposition was to furnish a drying plant for $6,000 and that they were willing to guarantee it to be efficient, but that the plaintiff concluded to do a large part of the work itself thereby reducing the price of the portion to be furnished by the defendant from $6,000 to $2,100. The court very properly took notice of that aspect of the case in discussing the question of a guaranty by the defendant.

The thirteenth assignment criticises the court for not having given the plaintiff's explanation of the reason why no complaint was made until in July after the machine was put in operation, but that evidence did not change the time when the complaint was actually made, and the court adverted to that date in connection with the conduct of the company in subsequently giving a note to the-defendant for the balance due on the contract and at a still later date making a payment of $500 thereon. The jury had the plaintiff’s explanation, and we think it would not have helped its case to have introduced a consideration of it in connection with the comments of the court on the giving of the note and the subsequent payment thereon.

The fourteenth and sixteenth assignments bear on the same subject. It was legitimate for the jury to take notice of the plaintiff’s conduct in giving the note and making the payment thereon after it had ascertained that the dryer was not working according to the alleged guaranty, with a view to determining the good faith of the claim set up, and the court might with propriety present that matter for their consideration.

That part of the charge contained in the fifteenth assignment is based on the issue apparently made up that the defendant was bound to respond to the plaintiff in damages because of a breach of guaranty. That, as we understand from the statement of the question involved, was the issue in the case, and the defendant’s liability would be contingent on the failure to perform according to the guaranty.

As we understand the argument of the counsel for the appellant the answers to the points assigned for error in the seventeenth and eighteenth assignments are admitted to be correct. The complaint seems to be that the court should have added something thereto, but it was not the duty of the court to enter into a discussion of the subject presented in the points. If any explanation or elaboration of the answer was desired by the plaintiff the attention of the court should have been called to it. Assignments of error to the effect that the court below did not specifically charge as to certain matters will not be considered where no request for such instructions on such matters is made: Murtland v. English, 214 Pa. 325.

The nineteenth assignment that the charge as a whole presents the case to the jury in a manner less favorable than that to which the plaintiff was entitled does not seem to us to be sustained. The points of controversy as exhibited by the evidence and the charge of the court related to the allegation of a contract of guaranty and the question whether the plaintiff bought a brick dryer or merely parts of a dryer, and these questions were fully and we think not unfairly presented to the jury by the court. The charge occupies fourteen pages of the paper-book. It left to the jury very clearly and fairly the question whether the guaranty alleged by the plaintiff was made, and also the question whether under the contract the dryer company agreed to furnish a dryer taken as a whole or whether they merely contracted to furnish certain materials, the brick company to provide the others and to construct it according to the plans and specifications of the dryer company. A charge of a court alleged to be inadequate should be viewed on appeal with' reference to its general effect. If as a whole it is not calculated to mislead it is not erroneous. It is not difficult in a charge growing out of controverted allegations of fact to select some portion which, apart from its context, seems subject to objection, but it would be unjust to the trial judge and obstructive to the administration of justice to take strict account of a single period without reference to the other portions of the charge. There were no assignments of error to the admission of evidence, and we may assume, therefore, that the appellants introduced all the evidence which they considered relevant and that none was introduced on the other side which was incompetent. The facts were fully presented and the appellant failed to persuade us that the case was not well disposed of in the court below.

The judgment is affirmed.