City Iron Works v. Barber

• Decision Date: 05 February 1883
• Citation: 102 Pa. 156
• Parties: Erie City Iron Works <I>versus</I> Barber & Co.
• Court: Pennsylvania Supreme Court

102 Pa. 156

Erie City Iron Works versus Barber & Co.

Supreme Court of Pennsylvania.

January 18, 1883.

February 5, 1883.

January 18th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. CLARK, J., absent

ERROR to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1882, No. 125.

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Nathan H. Sharpless and R. C. McMurtrie, for the plaintiffs in error.—The causes of action set out in the original and amended narr. not only differ in the form and character of the allegations, but in the very gist of the thing. The first two of the original three counts consisted merely in the allegation that the boiler was not built according to contract. The third count similarly alleges merely a damage caused by the careless and negligent making of the boiler. The amended counts introduce another cause of action by alleging that the defendants, as an inducement to purchase, represented and warranted said boiler to be equal to one made of flange iron, and to be entirely fit and safe for use. This completely changes the relation of the parties to the subject matter; the alleged representations and warranties are not only different in form and substance, but they are inconsistent; negligently overlooking an item in a specification is a very different thing from an undertaking in the first instance to warrant the boiler as up to a certain standard absolutely and at all hazards. Nothing can illustrate this better than the difference in the measure of damages; under the original narr. for furnishing a boiler other than as ordered, defendants were only liable for the difference in the value of the two boilers, in this case at most not more than $100. While under the amended counts, the jury have given the plaintiffs a verdict for $8,440.26.

That it is not permissible to make such an amendment may be seen by a reference to the cases of Wright v. Hart, 8 Wr. 454; Trego v. Lewis, 8 P. F. S. 463; Kaul v. Lawrence, 23 P. F. S. 410; Kille v. Ege, 1 Norris 102; Leeds v. Lockwood, 3 Norris 70; Carn v. Fillman, 10 W. N. C. 152.

The language used by Selden to Barber did not rise to the dignity of a guarantee. It lacked certainty, and did not bind the defendants. It is evident from the testimony that Selden was speaking only for himself. His words are: "I say to you, on my reputation," &c. The learned judge, therefore, erred in submitting upon this evidence and under the pleadings in this cause the question of a contract of guarantee as a substantial cause of action.

The true measure of damages in this case, if the plaintiffs were entitled to any, was the difference in the value of the mill and its contents immediately before and after the explosion. Our point which requested an instruction to this effect was negatived by the court, which substantially instructed the jury to give "such damages as they believed under the evidence they had sustained." That to leave the quantum of damages to their caprice is error, is shown in the case of Pennsylvania R. R. Co. v. Books, 7 Smith 339, where a similar instruction was held to be error.

Richard P. White (George H. Earle, Jr., and D. C. Harrington with him), for the defendant in error.—The narr. as amended merely set forth our cause of action in three distinct manners: (1) In deceit for fraudulent representations; (2) In deceit for a breach of warranty; (3) In negligence. That these counts could be joined is shown by the case of Schuchardt v. Allens, 1 Wallace 368, and cases there cited. It was not necessary to establish an express contract of guarantee, for the law will raise an implied guarantee, where, as in this case, goods are ordered from a manufacturer for a particular purpose, and prove unfit for that purpose: Hyman v. Nye, L. R., 6 Q. B. D. 685; Brown v. Edgington, 2 M. & Gr. 281; Randall v. Newson, L. R., 2 Q. B. D. 102; Work v. Leathers, 97 U. S. 380. The failure to aver a scienter will be considered amended, as it was amendable, and would have been amended in the court below, had the objection to its omission been then raised. An appellate court will never reverse for what was amendable below: Shoenberger v. Zook, 10 Casey 29; Barker v. McCreary, 16 Smith 162.

Mr. Justice GORDON delivered the opinion of the court, February 5th 1883.

As long ago as the case of Chambers & Boyd v. Crawford & Barker, Add. 150, it was, in this state held, that if a workman does a piece of work insufficiently, he is answerable for all the consequences which may result from that insufficiency, and this though the employer may have accepted that work without objection. So also in Godley v. Hagerty, 8 Har. 387, it was determined that where one erects a building for rent, he is bound to reasonable skill and dilligence in its construction, regard being had to the purposes for which it is intended, and that if such building be negligently and carelessly built, the owner is responsible, even to a stranger, for damages suffered by its fall. And it is said, in this case, by Mr. Justice WOODWARD, "If he will build as charged and found in this case, ...