Baltimore Refrigerating & Heating Co. of Baltimore City v. Wetzel

• Decision Date: 05 May 1908
• Docket Number: 777.
• Citation: 162 F. 117
• Parties: BALTIMORE REFRIGERATING & HEATING CO. OF BALTIMORE CITY v. WETZEL et al.
• Court: U.S. Court of Appeals — Fourth Circuit

162 F. 117

BALTIMORE REFRIGERATING & HEATING CO. OF BALTIMORE CITY v. WETZEL et al.

No. 777.

United States Court of Appeals, Fourth Circuit.

May 5, 1908

Robert H. Smith and George Whitelock (David Fowler, on brief), for plaintiff in error.

W Calvin Chestnut and Charles Markell, Jr. (Gans & Haman, on brief), for defendants in error.

Before PRITCHARD, Circuit Judge, and PURNELL and DAYTON, District judges.

PURNELL District Judge.

Suit was instituted by plaintiffs below, trading as the Wetzel Mechanical Stoker Company, against the Baltimore Refrigerating & Heating Company, a corporation, to recover the sum of $5,591.50, with interest, being the contract price for eight mechanical stokers sold and erected by the plaintiffs for the defendant under a written contract. The declaration contains the common counts, and a special count setting up the written contract in August, 1906, to erect the stokers, and alleging that the stokers had been erected and installed in accordance with the contract, and that the defendant had failed and refused to make any payments. The defendant pleaded the general issue, and also a special plea, alleging that the stokers in question are an infringement of a patent.

This last defense was abandoned at the trial, and no evidence offered to support it.

The plaintiffs below (defendants in error here) reside at Trenton, N.J., and are engaged in the business of manufacturing and erecting a certain mechanical stoker for feeding coal into furnaces. The stoker manufactured by them known as the 'Wetzel mechanical stoker,' is a patented device. The plaintiff in error was familiar with the Wetzel mechanical stoker, and had in use four of these stokers (or two double stokers, as they were formerly described), erected under a contract of November 2, 1905. The contract for the erection of the eight stokers is contained in the written contract, dated August 4, 1906, by which the Wetzel Mechanical Stoker Company agreed to erect and install the eight stokers for $5,864, payable in the installments therein provided, together with a contemporaneous paper dated August 9, 1906, signed by the Wetzel Mechanical Stoker Company subsequently to the signing of the contract dated August 4th, but prior to the execution of the contract by the refrigerating company. The formal written agreement, dated August 4th (but not actually executed by the refrigerating company until August 9th), and a letter of August 9th, constitute the contract.

In the course of the trial two defenses were suggested: (1) An effort was made by the defendant to establish by parol evidence certain warranties which are not contained in the written contract under which the eight stokers were erected, but were contained in the contract of November 2, 1905, under which the previous Wetzel mechanical stokers had been erected and were claimed by the defendant to have been incorporated in the present contract by oral agreement subsequent to the written contract. (2) The defendant offered evidence to show that the eight stokers in question did not comply with provision of the written contract that 'the metal is distributed in such a way that the air space will range from forty per cent. to seventy per cent. (40% to 70%), and will give sufficient supply of air, at the same time not permitting the sifting of any unconsumed coal or carbon to the ash pit. It was asserted by a number of witnesses for the defendant that coal did sift through to the ash pit, to a great loss of the defendant. At the conclusion of the case, with all of this testimony before them, the jury found a verdict for the plaintiff for the full amount claimed, with interest.

There were 17 assignments of error presented for review of certain rulings of the court on questions of evidence, and the action of the court in granting the plaintiffs' three prayers, and their motion to strike out testimony, and refusing the defendant's first prayer, and the defendant's motion to exclude testimony. A number of these assignments of error involve the same legal questions, which this court must of necessity eliminate. The jury returned a verdict in favor of plaintiffs below, defendants in error here, for the contract price, and upon such verdict the court entered judgment for the contract price, $5,591.50. The contract was an entire contract. Though the price was to be paid in installments, the whole price was to be paid for the work to be done, i.e., installing the stokers. There was no other consideration for the contract.

Although it is contended in the brief of plaintiff in error that a written agreement may be changed after its execution by a parol agreement, as a general proposition of law this is...