Page Steel & Wire Co. v. Blair Engineering Co.

• Decision Date: 01 November 1927
• Docket Number: No. 3468.,3468.
• Citation: 22 F.2d 403
• Parties: PAGE STEEL & WIRE CO. v. BLAIR ENGINEERING CO.
• Court: U.S. Court of Appeals — Third Circuit

22 F.2d 403 (1927)

PAGE STEEL & WIRE CO. v. BLAIR ENGINEERING CO.

No. 3468.

Circuit Court of Appeals, Third Circuit.

September 22, 1927.

Rehearing Denied November 1, 1927.

Hershenstein & Finnerty, of Jersey City, N. J. (Edward L. Katzenbach, of Trenton, N. J., and Forrest M. Anderson, of New York City, of counsel), for plaintiff in error.

Merritt Lane, of Newark, N. J., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

On February 25, 1920, the parties herein entered into an agreement whereby the complainant, Blair Engineering Company, was to furnish "all the necessary plans and specifications for such alterations and additions as the Page Steel & Wire Company may desire to make in connection with its manufacturing plant at Monessen, Pa.," and to supervise all the work involved in making such alterations and additions. The undertaking of the defendant was conditioned by its "desire." It might or might not desire to make any alterations and additions. No obligation was imposed upon it to do so. We held, when the case was here before, that the agreement was void for lack of mutuality and so was unenforceable. But we also held that the agreement was not illegal, and so the complainant could recover for the reasonable value of the work it had performed, services rendered, and money expended. Blair Engineering Co. v. Page Steel & Wire Co. (C. C. A.) 288 F. 662.

The suit before us is for those services, etc. The complainant had a verdict, and the defendant has brought the judgment here for review on the ground that prejudicial error was committed against it in the admission of evidence, in the refusal to order a bill of particulars, and in the refusal to charge the jury that the defendant did not breach the contract.

The alleged error in the admission of evidence related in part to the admission of expert testimony of Thomas S. Blair, Jr., who is the Blair Engineering Company, Incorporated, as to value of work which the plaintiff had done for the defendant in and about alterations and additions to its plant. Mr. Blair testified as to what the plaintiff did in preparing for the construction of what he called "rush work," "the interlaced work," work "referred to by the November 19, 1920, statement." He was permitted over objection to state what the value of the services of the plaintiff for each of these three pieces of work was with the allowance or deduction for supervision which had not been made. Defendant says that the admission of this testimony was erroneous, because Mr. Blair did not qualify as an expert, but, assuming his qualifications, it was then "improper because it does not state the work for which an estimate of the reasonable value is asked" and because "the record did not contain `a sufficient particularity of specification' of the work claimed to have been done to admit an opinion of its value."

In reply to the objection, the trial judge said: "The witness stated several times, in my recollection, the work he has done. You don't want him to state it all over again, do you?" Defendant's counsel replied: "It would be as indefinite as it has been heretofore stated, perhaps I might agree with that, but I should like, if I could, to get a definite statement from the plaintiff as to exactly what he is claiming and exactly that matter upon which he bases his estimate." The court further said: "I thought we consumed considerable time this morning while Mr. Blair went over it in some detail." Mr. Blair was then examined at length as to his qualifications as an expert and as to the work for which the plaintiff was demanding compensation.

The testimony of Mr. Blair as to his qualifications and the work done under his direction for the alterations and additions to defendant's plant covered over a hundred pages. This was work of a highly technical and professional character, based on a quantum meruit. From the very nature of the case, the exact hours that every person engaged in the enterprise spent on the various classes and items of work, is difficult to give and is not required, just as is true in the case of the fees of lawyers. Ability required in doing the work, the nature of the work, and attendant risks, and the necessary labor and time consumed in doing the work, are items which must be considered, and the testimony was not incompetent even if it left the plaintiff's services somewhat indefinite and vague. Edgecomb v. Buckhout, 146 N. Y. 332, 40 N. E. 991, 28 L. R. A. 816; Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028; 28 Ruling Case Law, 675.

The admission of the testimony of James R. Gloyd is assigned as error. Defendant says this testimony was erroneous because his statement of the value of the services rendered by the plaintiff was based, not upon a hypothetical question containing a statement of the services which plaintiff testified it rendered, but upon the work performed by plaintiff company "as testified to." The information should have been elicited by means of a hypothetical question. Shoemaker v. Elmer, 70 N. J. Law, 710, 58 A. 940; Craig v. Noblesville & Stony Creek Gravel Road Co., 98 Ind. 109. But when this question, now objected to, was asked, counsel for defendant asked permission to examine the witness as to his qualifications. After the examination, he interposed an objection and was granted an exception on the single ground that the witness was not qualified as an expert. There was no objection on the ground now raised. To reverse a judge without an objection would be unfair. Further, a mere objection without the statement of the grounds therefor will not sustain an exception. It must appear to the court called on to review the rulings of a trial court, not only that the ruling complained of was objected to, but that the specific ground of objection relied on for reversal was presented to the court below. Cole v. Cliver, 44 N. J. Law, 212; Mooney v. Peck, 49 N. J. Law, 232, 12 A. 177; Oliphant v. Brearley, 54 N. J. Law, 521, 24 A. 660. We, however, may raise an objection on our own motion under rule No. 11, but we are not inclined to do so, unless there is manifest error which results in harm and great injustice. We do not think the facts here justify us in exercising our power under the rule. Furthermore, it is a question whether or not, on a fair interpretation of what took place when the question was asked, counsel did not consent to the question and waive the hypothetical form. Counsel for defendant said that the question was improper "because it does not state the work for which an estimate of the reasonable value is asked"; that is, it was not stated in a hypothetical question, but was left to be inferred from the facts "as testified to." The court then asked: "How long a question do you think Mr. Lane would have to frame; would he have to repeat the testimony"? The defendant's counsel said: "No, sir; I wouldn't want to ask him to do that; that would be too burdensome, indeed; but, if the witness should state shortly the work, the estimate of which he is making, and your honor rules he is competent as an expert to give such evidence of reasonable value, I presume I could not claim as I have concerning the question." At any rate, the point here raised was not objected to, and in our opinion no harm was done.

Defendant says that the testimony for the plaintiff as to the amount of work it did was contradictory and prejudiced the jury; that Blair testified in the beginning that all the "necessary" plans and specifications for the work had been prepared, but later he admitted, and Falkenburg testified, that all the plans and specifications were not completed. The jury heard all the testimony, and we cannot assume that it was misled by the testimony of the plaintiff and its witnesses, but, on the contrary, assume that it, having heard all the testimony, based its verdict upon the reasonable value of the work actually performed.

Defendant further says that the court erred in admitting plaintiff's testimony as to "customary charges," because plaintiff admitted that there were peculiar conditions connected with this work for which there was no precedent, and therefore there could not have been a customary charge for it; that the custom sought to be established did not apply to the "peculiar conditions" of this case, and, in any event, evidence of custom is not admissible to vary the terms of a contract where such terms are clear and definite. Etna Forge & Bolt Co. v. Youngstown Sheet & Tube Co. (C. C. A.) 282 F. 786; Tilley v. County of Cook, 103 U. S. 155, 26 L. Ed. 374.

The "peculiar conditions" referred to the requirement that the designing and engineering work be done in such a way that the plant could be operated at the same time. Blair testified that the ordinary work of a remodeling nature was...