Accumulator Co. v. Dubuque Street Ry. Co., 391.

• Citation: 64 F. 70
• Decision Date: 24 September 1894
• Docket Number: 391.
• Parties: ACCUMULATOR CO. v. DUBUQUE ST. RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

64 F. 70

ACCUMULATOR CO. v. DUBUQUE ST. RY. CO.

No. 391.

United States Court of Appeals, Eighth Circuit.

September 24, 1894

This was an action upon a contract to recover $48,886.89, the purchase price of certain machinery, material and services which constituted an electrical equipment for operating the Dubuque Street Railway by the storage-battery system. The defense was that the plaintiff, the Accumulator Company failed to comply with its contract as to the character and efficiency of the equipment, to the damage of the defendant the Dubuque Street Railway Company, in the amount in excess of the purchase price. There was a verdict and judgment for the defendant, and this writ of error is brought to reverse that judgment.

The contract on which the suit was based consisted of a proposal dated and accepted July 30, 1890, and a letter from the vendor to the railway company of the same date. The parts of the proposal material to the questions presented for our consideration are as follows:

'New York, June 30th, 1890.

'Dubuque Street Railway Company, J. A. Rhomberg, President, Dubuque, Iowa--Dear Sir: In conformity with our verbal understanding to-day we beg to make herewith the following proposal: We will deliver f.o.b. Philadelphia, one (1) trial car, sixteen (16) feet long, with two (2) ten (10) horse power motors, and two (2) sets of storage batteries, together with complete charging equipment, such as you have seen at 23rd and Brown Sts., Philadelphia, for your use in Dubuque, and we will send an expert to supervise the running of it during a period of sixty (60) days. Our experience with this trial car renders us certain that the guaranty will be performed to your satisfaction, and if at the end of the sixty days, to wit, on or before the first day of October, 1890, we do not receive proof to the contrary, then the balance of this contract, covering purchase of six (6) car equipments, with the option of nine (9) car equipments additional, at the same price, shall go into full effect. If at the end of the said sixty (60) days the trial car shall have failed in any important particular to perform the specified service, then and in that case you shall notify us promptly on or before the last day of the said sixty (60) days, and you shall return the trial car and equipments in good order to us. You are to pay us three hundred dollars ($300.00), being intended to cover half of all the expenses of the transportation both ways of this trial car, and also the expenses of the expert from the time he leaves Philadelphia until his return from Dubuque. If the balance of this proposal for six (6) car equipments or more does not take effect as above provided, at the end of the sixty (60) days, then you are to pay us a further sum of three hundred dollars ($300.00), which is intended to cover the balance of the above-described expenses, and return the car, etc., to us in good order. If at the termination of the said sixty (60) days, or sooner, at your option, the balance of this contract shall come into effect as above provided, we will supply you with not less than six (6) car equipments, as described in the accompanying specifications, for the sum of eighteen hundred dollars ($1,800.00) cash f.o.b. cars Philadelphia, and not less than one hundred (100) cells per car of the '23M' type, together with all necessary connections, crates, &c. (the crates to have suitable automatic connections), at twelve dollars ($12.00) per cell, including the cost of the crates f.o.b. cars at our factory, Newark, N.J. * * * We will also supply two (2) reserve armatures of 25,000 watts each for the sum of one thousand dollars ($1,000) f.o.b. Philadelphia. You will supply necessary power, suitable location for plant, and will erect the shifting devices from our drawings, and will also furnish all the labor necessary for the installation of the plant. * * * If the above-mentioned trial car is not returned within sixty (60) days, this company is to proceed at once with the filling of the rest of the order, not less that six (6) car equipments, together with all the rest of the above-mentioned equipments, and including at least one hundred (100) cells of battery per car, which are to be delivered f.o.b. Philadelphia or Newark, N.J., within ninety (90) days after the expiration of the before-mentioned period of sixty (60) days. * * *

'The plant will be considered satisfactory if it fulfills the following conditions: 1st. * * * 2nd. That each car will run twelve (12) miles an hour on a straight, level, and suitable track in good order, when carrying fifty (50) passengers, or an equivalent weight, not exceeding 6,000 lbs., and, if provided with additional cells, will draw a trailer weighing, loaded, not exceeding 6,000 lbs. 3rd. * * * 4th. * * * 5th. That two sets of batteries per car shall be delivered, either of which, when fully charged, shall be capable of propelling the car as above on a practically level track for a distance of twenty-five (25) miles, if required, when it shall be replaced by the reserve battery, which meanwhile shall have been fully charged. Each battery can be charged while its alternate is being used. 6th. That the batteries, when treated according to printed instructions, and their parts renewed as required, will remain in efficient condition. 7th. That all manufacturers of this company being intended to be first-class in every respect, any defects of workmanship, material, or design (ordinary wear and tear excepted) of which due notice shall be given by the customer to this company within one year of the date of delivery shall be corrected by us promptly without charge.'

On the same day that this proposal was dated and accepted, and as a part of the same transaction, the vendor delivered to the railway company the following letter:

'New York, June 30th, 1890.

'(Strictly Confidential.)

'Dubuque Street Railway Company, J. A. Rhomberg, President, Dubuque, Iowa--Dear Sir: In connection with our proposal of even date herewith which has been duly accepted by you, we hereby agree that, in the event of the electric car equipment therein referred to being supplied to you by this company, we will guaranty for a period of four (4) years from the date of installation thereof that the cost of renewals of batteries for the service proposed shall not exceed an average of two dollars and fifty cents ($2.50) per cell per annum f.o.b. cars at our factory, Newark, N.J. (the old piles being returned to us, freight and charges paid), provided the said batteries are used in accordance with the printed instructions, a copy of which will be posted by you conspicuously in the engine house, battery house, and the drivers' platform, and which instructions will form part of this guaranty. This guaranty is to be construed so as to exclude all damages or deterioration due to accident, malice, neglect, or act of God.'

The trial car was furnished and operated by the plaintiff for 60 days, and no notice was given by the railway company that it failed in any important particular. Thereupon Accumulator Company furnished an electrical equipment under the contract, and the railway company received it, and proceeded to operate its cars with it. The operation of street cars by means of storage batteries was an experiment, and there was evidence tending to show that in this case it was a very disastrous experiment; that although by a subsequent modification of the contract each car was provided with 160 cells (80 in operation and 80 being recharged), instead of the 100 (50 in operation and 50 being recharged) specified in the original contract, the equipment failed to comply with the contract in the following essential particulars: First, the electric power supplied by a battery of 80 cells was insufficient to propel a car at the speed of 12 miles an hour on a straight, level, and suitable track, in good order, and to carry 50 passengers, or an equivalent weight not exceeding 6,000 pounds; second, the electric power such a battery supplied would not draw a trailer weighing, loaded, not exceeding 6,000 pounds, on such a track; third, the electric power supplied by such a battery was incapable of propelling a car 25 miles, or more than 19 miles, on a practically level track, without recharging; and, fourth, the cost of renewing the batteries at the market price was on the average more than $5 per cell per annum. There was evidence to the effect that the failure of the equipment to comply with the contract in these particulars was so radical that it was worthless for the purpose of operating street cars, and that the railway company was compelled to abandon the use of it at the end of a year, and to substitute the trolley system. In order to set this storage-battery system at work, the railway company was compelled to provide a transfer table and a charging table, and to prepare an extra room in which the cells would be washed, at an expense of some $2,000, and this room and these tables became useless to it and worthless when it was compelled to abandon this system. The jury, under the direction of the court, allowed the defendant as its damages for the vendor's failure to furnish the equipment called for by this contract the sum of $2,000 for its loss on this room and these tables, and also the difference between the value of the electric equipment furnished and that agreed to be furnished. The errors assigned relate principally to the rulings of the court relative to the measure of the defendant's damages, and are stated and considered in the opinion.

Francis B. Daniels, for plaintiff in error.

D. E. Lyon (D. J. Lenehan, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after...