Chase's Patent Elevator Co. v. Boston Tow-boat Co.

• Decision Date: 06 January 1892
• Citation: 155 Mass. 211,29 N.E. 470
• Parties: CHASE'S PATENT ELEVATOR CO. v. BOSTON TOW-BOAT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 211

29 N.E. 470

CHASE'S PATENT ELEVATOR CO. v. BOSTON TOW-BOAT CO.

Supreme Judicial Court of Massachusetts, Bristol.

January 6, 1892

The plaintiff put in evidence and claimed to recover upon two grounds: First, that the elevator had been furnished and delivered complete and in working order according to the terms of the contract, and that it had been proved, upon reasonable trial, that the elevator had the capacity guarantied by the contract; and, secondly, that the defendant, after a reasonable trial, had taken possession of the elevator, accepted the same, and waived further trial or guaranty, and that the refusal to pay for the same was not on account of fault or failure to furnish the elevator according to the contract, but because the directors of the plaintiff company refused to form a syndicate, and allow Mr. Winsor the president of the defendant company, an interest in the plaintiff company. The plaintiff offered evidence tending to show that it made and furnished an elevator of the kind and capacity mentioned in the contract, and delivered it to the defendant at Fall River, and placed it upon a barge provided by the defendant, according to the contract; that before the delivery at said Fall River there was a trial of the said elevator in the presence of the defendant's agents and officers, and that it showed a capacity in excess of the guaranty; that the defendant thereupon accepted said elevator, and waived further trial or guaranty; that subsequently the defendant took down said elevator, towed it with said barge around from Fall River to Boston harbor, and set the same up again. The defendant admitted that their representatives were present at the working of the elevator at Fall River, but denied that it was the trial mentioned in the contract, and offered evidence tending to prove that the trial took place in Boston harbor, in the presence and with the assistance of the plaintiff, and that said trial showed that the elevator was a failure.The plaintiff offered evidence tending to show that the working of the elevator in Boston was not a trial, but was in compliance with the terms of the contract, which required the plaintiff to furnish all necessary instructions to the employes of the defendant "in running and working said elevator until they shall become accustomed thereto." The defendant called Alfred Winsor, president of defendant company, who testified as follows: "Had many interviews with Mr. Chase [of plaintiff company] before making contract the first of June previous." The defendant's counsel then stated that he proposed to show by Mr. Winsor that previous to the contract he and Mr. Chase had talks in which it was explained and discussed between them that the company wanted an elevator to discharge large steamers and large crafts. This was objected to by counsel for plaintiff, and the court ruled that the contract could not be varied by oral testimony; that it was understood the elevator was to work in all kinds of coal. Defendant's counsel stated that Mr. Chase had testified that the difficulty with the Mars was that Mr Winsor and this company had never shown him any vessel as large as that. There...