Johnson v. Freemann

Opinion by

Me. Justice Geeen,

The learned court below charged the jury as follows: “ It is for you to say whether the breaks which occurred and the difficulties that arose when the machine was taken out for use, were due to inherent defects in the plans and patterns which were furnished, or whether they were due to the lack of proper workmanship on the part of the plaintiffs, or due to some want of skill in the parts designed by them or in the construction of those parts. If the defects are due to imperfect workmanship on the part of the plaintiffs or to any want in the materials which they used in the construction of the machine, or if the parts which they were to design, and did design and construct, were not reasonably suitable for the purposes for which they were intended, the defendant would be entitled'to deduct from the claim of the plaintiffs such an amount as he would be required to expend in repairs in putting the machine in the condition which was arranged for in the plans and designs. He would be further entitled to deduct from that claim.the necessary expenses to which he has been put which were a result of those defects. The amounts have been testified to you, which he claims to deduct, and you have them before you. If the machine was constructed according to the plans and specifications which were furnished, with proper material, and the workmanship was of a reasonably suitable character, and if the parts designed by the plaintiffs were fit for the purpose for which they were intended, then the plaintiff is entitled to recover in this suit.”

The defendant being examined as a witness on his own behalf, testified as follows, inter alia, viz.: “ Q. And as another thing you do not pretend to say that the plaintiffs guaranteed this machine would do the work which it was designed to do ? A. They did not guarantee that. . . . Q. No such undertaking on their part that the machine would be successful so far as the paving the street went? A. No. Q. That was the object you had in making he patent, and they did not guarantee it ? They simply guaranteed the work and the materials ? A. That is all.”

■ The contract between the parties was in writing in the form of two proposals, the material parts of which are: First. “We propose to build for you one Johnson’s Patent Street Paving Ramming Machine complete, with boiler and engine, as per drawings and specifications, for the sum of $1,650, exclusive of patterns which are to be furnished to us.” Second. “ We revise our bid of 15th by proposing to build for you one Johnson’s Patent Street Paving Rammer, including revised drawings and patterns, for the sum of $1,850.”

The occasion of the revised bid was that a day or two after the first bid, and after the patterns had been examined, it was found that they were incomplete and that the drawings relating to the locomotive part of the machine were defective. The defendant called on the plaintiffs and was then informed of these facts. “ He then informed the plaintiffs that they should carefully examine all the drawings and specifications, and if there was anything imperfect or defective, to correct it. . . . He then requested them to send him another proposition covering everything needed to construct a complete machine suitable for the work for which it was to be used.” The foregoing quoted statements are taken from the defendant’s history of the case.

As will be seen by the above quoted portion of the charge, the court below instructed the jurythat “if the defects are due to imperfect workmanship on the part of the plaintiffs, or to any want in the materials which they used in the construction of the machine, or if the parts which they were to design, and did design and construct, were not reasonably suitable for the purposes for which they were intended, the defendant would be entitled to deduct ” etc.

This portion of the charge is not assigned for error, and it certainly seems to us to express the full measure of the plaintiffs’ obligation under the contract. ' According to the defendant’s personal testimony the plaintiffs did not guarantee, and were not asked to guarantee, that the machine when constructed would do the work for which it was made. The plans and specifications were to be furnished and were furnished by the defendant. When it was found they were imperfect in some respects, the plaintiffs undertook to furnish revised “ drawings and patterns,” to correct the imperfections, and did so, and as to these the charge of the court below held them liable if they were not reasonably suitable for the purposes for which they were intended. We are unable to hold, as is claimed for the defendant, that the words “including revised drawings and specifications,” in the second bid, operated to change the contract so that the finished machine should do its “ work satisfactorily as a machine.” The revised drawings and specifications were onty rendered necessary by the imperfect condition of the drawings and patterns that had been furnished by the defendant. It was merely to supply those defects that the plaintiffs undertook to furnish such as were needed. We cannot consider that this undertaking sufficed to change the whole nature of the contract. The case of Dubois v. Bigler, Young & Co., 95 Pa. 203, was entirely different from this. There the contractor was to furnish all the drawings for the engines, and guaranteed that the materials and working of the engines should be first class and satisfactory to the purchaser, and the decision was put upon that ground. Thus Mr.. Justice Trunkey, delivering the opinion, said: “ The engines and fixtures were for a particular purpose, to be made and placed by plaintiffs according to their drawings and specifications, the working of which was guaranteed to be first class and satisfactory. Materials, workmanship and plan were embraced in the engines and fixtures, which were warranted to do good work as the motive power for a large sawmill. . , . The plaintiffs contracted for the successful working of the machinery and are liable for its failure, unless success was prevented or hindered by the act or default of the defendant.” All of these important and controlling features are absent from the present case. We think the case was correctly tried by the learned court below. The instructions as to damages are not important in this view of the case, but, if they were, we think they are correct.

Judgment affirmed.