Chateaugay Ore Iron Co v. Blake

• Decision Date: 11 April 1892
• Citation: 144 U.S. 476,36 L.Ed. 510,12 S.Ct. 731
• Parties: CHATEAUGAY ORE & IRON CO. v. BLAKE
• Court: U.S. Supreme Court

144 U.S. 476

12 S.Ct. 731

36 L.Ed. 510

CHATEAUGAY ORE & IRON CO. v. BLAKE.

April 11, 1892.

STATEMENT BY MR. JUSTICE BREWER.

The defendant in error, plaintiff below, is a manufacturer, engaged in the manufacture and sale of a crushing-machine known as the 'Blake' crusher. Plaintiff in error, defendant below, owns and operates a large mine of iron ore in Clinton county, N. Y. In 1881 and 1882 plaintiff built for defendant a crushing-mill of 200 tons capacity per day, which was accepted by the defendant, and satisfactorily used for years. The operation of this crusher and its adaptability to the business necessities of the defendant were thus fully disclosed to the latter by its experience of these years. With this experience and knowledge, the following contract was entered into between the parties:

'Memorandum of agreement made and entered into this 26th day of March, 1886, between Theodore A. Blake, of New Haven, Conn., and the Chateaugay Ore & Iron Co., of Plattsburg, New York.

'Theodore A. Blake, party of the first part, in consideration of one dollar to him in hand paid, and of other considerations, covenants and agrees to furnish the Chateaugay Ore & Iron Co. with a crushing plant, guarantying capacity of six hundred tons daily, crushed to pass through a round hole 4-16ths of an inch in diameter, consisting of the necessary crushers, screens, elevators, shafting, hangers, pulleys, couplings, collars, and belts, in accordance with the specifications hereunto annexed and drawings already submitted, delivered free on board cars at places of manufacture, together with full detailed plans of building for said crushing plant and arrangement of crushing machinery therein, and that he will send a competent man to superintend the placing and erection of the machinery without extra charge, except for board and traveling expenses, and an experienced man to put on all belts, on same terms, for the sum of twenty-five thousand five hundred dollars.

'And the said Chateaugay Ore & Iron Co., party of the second part, in consideration of the premises and other considerations, agrees to pay the said Theodore A. Blake or his order one half the amount, viz., twelve thousand seven hun- dred and fifty dollars, on presentation of the bills of lading for the sixteen crushers at the said company's office, and the remainder when the machinery is successfully running.

'THEODORE A. BLAKE.

'CHATEAUGAY ORE & IRON CO.,

'By A. L. INMAN, Gen'l M'g'r.'

The first half of the purchase price was paid at the stipulated time. The crushing plant was completed and put in operation about the 1st of October, 1886. On October 7th defendant paid plaintiff $2,500, on October 27th, $2,500, and about the 9th of November, $2,500 in addition, making $7,500 paid after the completion of the plant and the commencement of its operation, and leaving a balance under the contract of $5,250, for which suit was brought. Another suit was also commenced for extras and the expenses of the superintendent. The two were consolidated by order of the court, and proceeded to trial as one. Verdict and judgment were in favor of the plaintiff for $9,574.53, to reverse which judgment the defendant, plaintiff in error, sued out this writ of error.

Frank E. Smith and Edmund Wetmore, for plaintiff in error.

[Argument of Counsel from pages 479-482 intentionally omitted] L. E. Chittenden and R. D. Mussey, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

The question in this case in whether or not the plaintiff fully performed his contract of March 26, 1886. The contract stipulated for payment of one-half of the price before, and of the other half when, the machinery was completed and successfully running. Now, in addition to the full payment of the one-half, substantially three-fifths of the other was paid in three successive payments; the first within one and the last not until six weeks after the commencement of actual operations. There is significance in these latter payments. While not conclusive on the company, the indicate that in its judgment, for a while at least, the plant fully satisfied all the conditions of the contract, and are properly to be considered in determining the merits of the defense made to this action. That defense is that the plant was improperly and unskillfully constructed, of weak and defective parts, of material not adapted to the work which it was designed to perform, and that its actual working capacity did not exceed 350 tons a day. The answer, besides its defensive allegations, contained a counter-claim.

The first matter we notice is the alleged error in the testimony of Charles S. Brown, who, from certain account-books which he presented, was permitted to testify as to the actual working of the plant between October 18th and November 7th, giving in that testimony the actual hours the plant was working, the number of tons crushed, the hours of delay, and the causes therefor. This witness was sent by Mr. Blake to superintend the erection of the plant, to watch its workings when completed, and to make any needed repairs, improvements, or changes. At his suggestion, after the plant commenced work, the defendant's superintendent directed the foremen of the mill to keep these books. The foremen, of whom there were four, generally made the entries on the books, though sometimes Brown did the writing at their dictation. The entries were made daily; at least, that was the intention and the general practice. The amount of ore crushed, as disclosed by these books, corresponded within a few tons with the amount testified to by the officers of the defendant company. Brown himself was present at the mill most of the time during the day, and had a general knowledge of the accuracy of these entries, so far as respects the work during that time. We think the testimony was competent. The books were kept by the direction of the defendant's superintendent, and the entries made by its foremen. They were intended to be, and in fact generally were, contemporaneous with the matters stated; and their substantial accuracy is corroborated by the personal knowledge of the witness, and the near coincidence of the general result with that vouched for by the defendant. They may not have been account-books of the defendant, in the technical sense of the term, such as are generally admissible against a party, but they were memoranda made under the direction of the defendant, for the purpose of preserving a record of certain facts, and made under such circumstances as to be worthy of a measure of credence as against it.

A second matter is this: The general manager of the defendant was asked what, in his judgment, was the daily capacity of the mill. This question was objected to, on the ground that the witness was not shown to be competent to testify as an expert, which objection was sustained. How much knowledge a witness must possess before a party is...