B.F. Sturtevant Co. v. Champion Fibre Co.

• Decision Date: 12 April 1916
• Docket Number: 2712.
• Citation: 232 F. 1
• Parties: B. F. STURTEVANT CO. v. CHAMPION FIBRE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

232 F. 1

B. F. STURTEVANT CO. v. CHAMPION FIBRE CO.

No. 2712.

United States Court of Appeals, Sixth Circuit.

April 12, 1916

Cobb Howard & Bailey and Henry L. Rockel, all of Cincinnati, Ohio for plaintiff in error.

C. D Robertson and C. B. Matthews, both of Cincinnati, Ohio, for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and KILLITS, District Judge.

KNAPPEN Circuit Judge.

Plaintiff below (defendant in error here) sued for alleged breach of guaranty in a contract for installation of certain mechanical apparatus. There was trial by jury, resulting in verdict for plaintiff and judgment thereon.

Plaintiff was engaged, at Canton, N.C., in manufacturing wood pulp and paper. Its plant contained 20 boilers, each of 316 rated H.P., thus aggregating 6,320 B.H.P. The boilers were arranged in two series of 10 each, each furnace having V-shaped grates whose projected area was 8 feet by 7 feet, fed by automatic stokers. To aid in producing power and to save fuel, the hot gases from the furnace passed through economizers (of which there were four). Each economizer consisted of an inclosure containing a series of feed water pipes, arranged in sections, through which inclosure the hot gases from the furnaces passed, thereby considerably heating the water before it entered the boilers. These economizers had been supplied, but not installed, by defendant. The plant had but one stack. An enlargement of the plant requiring increased power and thus increased draft, plaintiff contracted with defendant for delivery and installation, at a price of $9,995, of a specified induced-draft apparatus, to work in connection with plaintiff's boilers, grates, stokers, and economizers. This draft-inducing apparatus consisted of four engines of specified type and dimensions, having a normal speed of 400 R.P.M., each engine operating a fan of given type and size for delivering the gases to and operating in connection with the stack, there being one upper fan and one lower fan for each of the two series of furnaces and boilers. The guaranty was in this language:

'We guarantee this apparatus under the above working conditions, to furnish sufficient draft to develop 10,000 B.H.P., it being understood that 1 B.H.P. will require not over 4 1/4 pounds of coal.'

The draft-inducing apparatus was installed in June, 1909, before the enlargement of the plant. About October, 1910 (after the plant was enlarged), plaintiff, believing that the guaranteed 10,000 B.H.P. was not furnished, made a test of the plant, at which defendant was not represented. On November 30th and December 1st following, a two days' test was had, at which defendant was represented by a mechanical expert; at this test less than 8,000 H.P. seems to have been developed. Defendant did not accept this as a convincing test, and on July 1, 1911, a ten-hour test was had, at which defendant was represented by another mechanical expert. It is undisputed that at this last test only about 7,800 B.H.P. was developed.

Upon the trial plaintiff gave evidence regarding the first test, and both parties presented testimony as to the second and third tests. The first two tests seem not to have been regarded by either party as entirely adequate, and the conflict centered generally upon the conclusiveness of the test of July 1, 1911, the ultimate meritorious question being reduced to this: Whether defendant furnished draft enough to burn coal enough to produce the required power, or whether the failure to produce more power was due to the delivery of insufficient coal upon the furnace grates. Plaintiff insisted that it delivered upon the grates all or substantially all the coal the draft supplied would burn; defendant insisted that it furnished more than enough draft to consume the coal required to develop the 10,000 B.H.P.

At the conclusion of the testimony defendant moved for directed verdict in its favor, which was denied, and the question of fact whether the guaranty was fulfilled was submitted to the jury, with instructions that the measure of plaintiff's general damages (in case of breach of the guaranty) was the difference between what the induced-draft apparatus was worth as actually delivered and what it would have been worth if as guaranteed. Such difference was found by the jury to be $6,080, and the general verdict was for this amount less an established counterclaim. Judgment was entered for the difference between these sums, after correction by the addition of interest upon the counterclaim. Plaintiff's claims for special damages for loss of power in the engines and for fuel and heat loss were submitted to the jury, but wholly disallowed.

1. The most prominent ground of the motion to direct verdict was that the evidence did not reasonably tend to show that the failure to develop the required boiler horse power was due to the insufficiency of the induced-draft apparatus. Disregarding the first two tests, if it be assumed that the test of July, 1911, was suitable for developing the maximum capacity of the plant, the fact that the guaranteed 10,000 B.H.P. was not developed has a tendency to show the ineffectiveness of the apparatus. There was express and direct testimony that the test was suitable for developing the maximum capacity, and that, although the fans were run at a speed in excess of 400 R.P.M., they produced insufficient suction, due to the obstruction to the draft by the economizers, and loss in draft in the flues through collision of the gases owing to alleged improper pitch of the fans. True, there was testimony on defendant's part that the test in question was insufficient; that a satisfactory test would require a much longer preparation than was had; and that the conditions under which the test was made were unfavorable to accuracy in several respects, including failure to 'blank' the valves of certain pipes leading into the boilers, an inaccurate meter, an improper pump, and exposure to the weather of steam pipes leading from the boilers to the engines operating the fans. But these criticisms of the conditions surrounding the test presented only questions of fact for the jury, in view not only of the express testimony by experts that the conditions were suitable to develop maximum capacity, and that the exposure of the steam pipes to the weather (the out-door temperature being 100 degrees) caused a drop in pressure of no more than 4 to 6 pounds between the boilers and the fan engines, but also of testimony that defendant's expert approved everything that was done.

Defendant denies that the 'collision of gases' impaired the draft, and insists, moreover, that its contention that the failure to develop the required power was due to the feeding of an insufficient amount of coal is shown to a demonstration by undisputed tests, and that the verdict is thus opposed to established physical facts. The amount of coal actually burned during the test was between 21 and 23 pounds per square foot of grate surface per hour, or about 3 1/10 pounds per boiler horse power developed. There was testimony on defendant's part that the carbon dioxide test of the flue gases showed that there was furnished about 25 pounds of air per pound of coal burned, and that in practice 15 pounds of air per pound of coal is enough; that the amount of air so furnished would have burned 30 pounds or more of coal per square foot, producing more than 10,000 B.H.P., the amount keeping within the maximum of coal consumption recognized by the guaranty; that the draft furnished (about 16/100 of an inch) was sufficient to burn this required amount of coal; that the burning of an insufficient amount of coal was shown by the small percentage of coal in the ash, as well as by the alleged fact that during the test the coal was completely burned out by the time it reached seven-eighths or less of the full travel of the grates; and that the automatic stokers employed were incapable, without coarser gearing, of supplying more coal than actually delivered to the grates. But the testimony that the coal was consumed before completing its travel was disputed; there was testimony tending to show that the carbon dioxide test indicated no greater excess of air than accorded with actual everyday practice, made necessary to prevent loss of heat energy through the formation of carbon monoxide; that the 16/100 inches of draft produced was not ordinarily enough to burn 30 pounds of coal per square foot of 'fair grade of coal'-- that at least 22/100 inches was required to produce the rated boiler horse power (6,320), and more in proportion to meet the 'overload'-- it appearing that defendant's published table of the 'relation of draft and rate of combustion' gave 26/100 inches of furnace draft as 'required to burn 22 pounds of dry coal per hour per square foot of grate,' and that the feeding of the coal, which was shovelled by hand into the magazines (instead of being automatically delivered from the bunkers), was accelerated by hand-cranking. It also appeared that defendant's expert made no claim during the test of an insufficient feeding of coal. And while one or more of plaintiff's witnesses admitted that there was draft sufficient to have burned some more coal than was burned, the testimony taken together was sufficient to support a finding that the draft was insufficient to burn coal enough to produce the guaranteed horse power; and upon the motion to direct verdict, the testimony must be viewed most favorably to plaintiff.

The proposition that plaintiff failed to show that its boiler system produced 6,320 B.H.P. before the draft-inducing apparatus was installed needs no special consideration. Some evidence of the fact is found in the undisputed testimony that the accepted rate of boiler horse power is based upon...