Central Trust Co. of New York v. Colorado Ry., Light & Power Co.

• Citation: 200 F. 85
• Decision Date: 07 October 1912
• Docket Number: 5,691.
• Parties: CENTRAL TRUST CO. OF NEW YORK v. COLORADO RY., LIGHT & POWER CO.
• Court: U.S. District Court — District of Colorado

200 F. 85

CENTRAL TRUST CO. OF NEW YORK v. COLORADO RY., LIGHT & POWER CO.

No. 5,691.

United States District Court, D. Colorado.

October 7, 1912

E. E Whitted, of Denver, Colo., for plaintiff.

D Ramsay Patterson, of Denver, Colo., for intervening petitioner.

POPE District Judge.

A large part of the oral argument was devoted to the contention that petitioner, Kronenberg, could not recover because the repairs for which suit was brought were the result of the negligence of the Parker Boiler Company, through its agent, Holton, in leaving water in the boilers at the time of the original construction, which water subsequently froze, causing the damages for which the repair bill was incurred. It is said that Kronenberg, being the Colorado sales agent of the Parker Boiler Company, cannot recover personally because of the antecedent negligence of his company, acting through Holton its agent.

This contention carries its own answer. This is a suit by Kronenberg personally. To this manifestly it is no defense that the company for which he happened to be an agent might by the negligence of another agent, have damaged defendant. Such a cause of action against the Parker Boiler Company can constitute no defense to a cause of action by Kronenberg. There are other conclusive reasons against this defense, as follows:

(2) The elimination upon the trial of all the defenses except that of the general issue leaves no pleading upon which to predicate the present contention.

(3) Holton, in erecting the boilers, was (from the standpoint of the Colorado Railway, Light & Power Company) not the agent of the Parker Boiler Company, but of the Walston H. Brown Construction Company. The undisputed proof is that the defendant Power Company had no contract with the Boiler Company, but solely with the Brown Construction Company, which latter was to furnish and install the boilers. To fill its contract with the Power Company the Brown Construction Company bought boilers from the Parker Boiler Company, and the latter company, as a part of the contract of sale, agreed to furnish and did furnish one of its employes, Holton, to install the boilers. expense was charged back by that company against the Construction Company, so that in effect Holton was an employe of the Construction Company, paid by that company. His negligence, if any, therefore, was the negligence of the company by whom he was employed and paid, not of the company which loaned him for that purpose. If any damage accrued to the Power Company by his acts, the claim of that company is not against the Boiler Company, which loaned him, but against the Construction Company, which employed him and paid him, and with which and only with which the Power Company had any dealings as to the installation of the plant.

(4) The testimony does not establish negligence by Holton, even viewed as agent of the Boiler Company. The proof shows that the introduction of water into the boilers was for a perfectly proper purpose, to wit, a hydrostatic test. The Power Company knew that this test was made. (Letter from Vickroy, relieving Holton, dated September 15, 1910.) It was made in midsummer. Holton testifies that the water was left in the boilers at the request of Vickroy, the chief engineer of the company, who stated that they desired shortly to start a slow fire for the purpose of drying the brickwork. He also testifies that Mr. Colby, then the company's engineer on the very work upon which he was employed, and to whom he was referred by Mr. Vickroy, was informed that the water was being left there, and was fully instructed as to how it might be drawn out. Directions as to the care of the boilers and how water might be drawn off were also given in printed instructions furnished the Power Company as early as July 16, 1910. Vickroy contradicts Holton so far as the alleged instructions by him to Holton were concerned; but Colby was not called by the defendant company to meet this testimony of Holton, which upon this important point is uncontradicted, and, indeed, is corroborated by Harlan, the defendant's manager, who says such notice might have been given to some other officer then at the plant, as some changes were made about that time. Upon the record, therefore, the defendant had notice that water was being left in the boilers, and it had notice of how this might be drawn, and its action in leaving the boilers until winter in the condition they were in when Holton was relieved was the company's negligence, not Holton's nor his employer's. There was, therefore, no action against the Boiler Company arising out of the bursting of the boilers.

(5) Even if there were any case against the Boiler Company, that could not be asserted as a defense to this suit, in view of the contract of February 14, 1911. At that time a controversy arose as to who should stand for these repairs, the Boiler Company or the defendant Power Company. The Boiler Company refused to proceed unless payment was assured, and ordered its material withheld and its employe recalled. In order to get these repairs promptly finished, the defendant agreed to pay for them, reserving to itself the right by a subsequent proceeding (which was to be by arbitration) to determine the question of liability between itself and the boiler people. This contract was: Pay first; arbitrate afterwards. The attempt in this suit to try the issue is a clear evasion of the terms of the contract and cannot be permitted.

But independently of this defense, upon which the court holds adversely to defendant, can the complainant recover? I am impressed with the fact that he cannot, at least upon the present pleadings.

(1) The complaint declares upon 'the verbal order and request of the defendant. ' The proof shows that any claim is based upon a written contract dated February 14, 1911. Coming to this latter, the contract is evidently one between the defendant and the Parker Boiler Company, not Kronenberg. While in the form of a letter addressed to Kronenberg (who was the company's agent for Colorado), it is signed 'Accepted, F. W. Kronenberg, The Parker Boiler Co. ' More significant, even, is the provision, 'It is also agreed the Parker Boiler Company will push the work continuously until completed,' thus showing that it was a contract, not with Kronenberg, but with his company. There is oral testimony by Kronenberg that he signed the contract without noticing the words 'The Parker Boiler Company' below his name; but there is no explanation of how, if it was mutually understood to be a personal agreement, it contained the provision that the Boiler Company, not Kronenberg, was to 'push the work continuously until completed. ' Its clear import is an agreement with the Boiler Company, and as such it cannot sustain a personal action by Kronenberg. Whether, upon the ground of mutual mistake in its execution, it could be reformed so as to be a personal contract, and as such enforced, need not be here determined, for the reason that there are no pleadings asking such reformation and enforcement as reformed. It seems clear that upon the present petition, declaring upon a personal verbal agreement there can be no judgment based upon proof of a written corporate agreement. Pacific Mutual Co. v. Webb, 157 F. 155, 84 C.C.A. 603, 13 Ann.Cas. 752.

Another obstacle presents itself to a judgment for Kronenberg. Even if on February 14, 1911, he entered into a personal agreement with defendant to complete the work, he is entitled to compensation only from that time forward. Previous to that the material delivered and the services of Holton had been under the understanding with the Boiler Company, initiated by the letter of January 5, 1911, written to it by Mr. Harlan on behalf of the defendant. It follows, therefore, that at least as to the material furnished and labor done up to February 14, 1911, the date of the letter to Kronenberg, the cause of action is in the Boiler Company. The proofs are not sufficiently specific to segregate how much was before and how much after that date. The correspondence between the Boiler Company and its representatives on the ground Kronenberg and Holton, indicates that a large part of the material had been delivered before February 14th; but the value of this...