Dodsworth v. Hercules Iron Works

• Decision Date: 05 February 1895
• Docket Number: 191.
• Citation: 66 F. 483
• Parties: DODSWORTH et al. v. HERCULES IRON WORKS.
• Court: U.S. Court of Appeals — Sixth Circuit

66 F. 483

DODSWORTH et al. v. HERCULES IRON WORKS.

No. 191.

United States Court of Appeals, Sixth Circuit.

February 5, 1895

In February, 1890, the Hercules Iron Works, a corporation of the state of Illinois, contracted to construct and erect for the defendants, Caleb Dodsworth and others, as partners, a machine and appurtenances for the production of ice, of the Hercules pattern and style, in accordance with certain specifications. This machinery was to be placed on the premises of defendants, and upon foundations prepared by them in accordance with plans furnished by plaintiff, and was to be completed and put in operation May 1, 1890, provided the foundations were prepared and possession of the premises given to the contracting corporation by March 15, 1890. The guaranties contained in the written contract were as follows 'First. That the machine will be capable of producing 25 tons of good, crystal, merchantable ice each twenty-four hours of continuous operation, provided it is kept in good order, and properly handled, and the temperature of the condensing water is not above 60 degrees Fahrenheit. Second. That the best material and workmanship will be used in the construction of the machine and apparatus; and, if any portion proves defective, we will furnish same free of cost. Third. We do not infringe upon the patent rights of any one and will defend any suit brought against you of which we shall have timely notice. Fourth. * * * Fifth. That we will furnish one competent engineer for thirty days after the machine is erected and started, who will superintend its running as you may direct, and who will instruct your employes in care of machine. Sixth. It is our intention to give you our 25-ton machine complete in every detail, and if there is anything required to make the same complete, not specified herein, it will be furnished without any cost additional to that hereinafter named. Seventh. The whole plant will be completed and in operation about May 1st provided you give us possession of the premises March 15th and the foundations and platform are ready at that time. Eighth. When the machine is run at its maximum capacity, in good order, and properly handled, with condensing water at 60 degrees F., and with engineers at $2.50 per day, firemen $2 per day, laborers $1.50 per day, and Pittsburgh coal at $1.45 per ton delivered, water to be pumped from well with power pump, the cost to produce ice will not exceed 85 cents per ton, not including interest upon the investment. ' The penalty for nonperformance and for delay in completion was that the Hercules Iron Works should pay any actual damage that might accrue to Dodsworth and his partners, 'not exceeding twenty dollars per day for each and every day until said plant is in operation, unavoidable accidents, however, excepted. ' The terms of payment were: One-third when the machinery has been delivered upon the premises; 'the remaining two-thirds after the machinery has been running thirty days, provided it has performed the guaranty as herein stated. ' The first payment was made on delivery of the machinery. There was some delay by defendants in completion of foundations for the machinery, and in the completion of the building in which the plant was to be erected. The machinery was constructed and put in operation about June 1, 1890, and no point is now made as to this delay. The defendants took possession of the machinery, and have operated the same during the ice seasons of 1890, 1891, and 1892. Default having been made in the deferred payments, suit was begun in 1893 in the circuit court of the United States for the balance due on the contract, with interest.

The petition, filed under Ohio code practice in lieu of a common-law declaration, set out the contract, alleged full performance by the plaintiff, and that the defendants, after the plant had been in operation for more than 30 days, 'received said ice machine and plant, and accepted the same. ' The plaintiff then averred that 'it had performed all the conditions of said contract on its part to be performed, and has become entitled to the payment of the said price, according to the terms of the contract, with interest. ' The defendants answered, and made their answer a cross petition. The defenses set out were: (1) That they had never accepted the said ice machine. (2) That the contract had not been performed according to its terms and conditions by the plaintiff in that it had failed to furnish many parts thereof as required, particularly a certain power pump described in the contract. (3) That the guaranty with respect to the capacity of the machine to produce 25 tons of good, crystal, merchantable ice every 24 hours of continuous operation had not been performed; and that said machine was not, and never had been, capable of complying with said guaranty. (4) That they have called upon plaintiff to complete said machine, but it had refused and failed to do so. (5) That they had notified the plaintiff to remove the machine, but that it had failed and refused so to remove it. (6) By way of cross petition, it alleged that they had been greatly damaged by the plaintiff's breach of contract, and sought to recover as follows: (1a) The money they had paid to and on account of plaintiff, and for articles bought by the defendants which should have been furnished by plaintiff. (2a) That, in carrying out their part of the contract, they had expended large sums of money, which by failure of plaintiff to furnish the machinery within the time required, and of the kind and capacity required, were totally lost to defendants. The plaintiff, in reply, denied all and each of the allegations of the answer and cross petition not specifically admitted. It admitted that the force pump in the contract had not been furnished, but averred that it was omitted at the special instance and request of the defendants, and that the value of the same, which was $150, should be deducted from the contract price. The defendants, upon the filing of this reply, moved for judgment upon the pleading. This was overruled, and leave given plaintiff to amend the petition, which was done, by inserting therein a statement that the power pump had been omitted at request of defendants, and that the value of the same was to be deducted from the contract price. Upon these pleadings, the jury, upon the evidence and upon the law as charged, returned a verdict for $17,024.40, being the full balance claimed by plaintiff, with interest, less the value of the pump and certain small payments made to or for plaintiff, concerning which there was little or no controversy. From this judgment, defendants have sued out a writ of error.

D. Wulsin, F. O. Suire, and Wm. Worthington, for plaintiffs in error.

Robert S. Fulton and Harmon, Colston, Goldsmith & Hoadly, for defendant in error.

Before LURTON, Circuit Judge, and SEVERENS and SWAN, District Judges.

LURTON Circuit Judge, after stating the facts as above, .

The petition declared on the written contract. It alleged, as required by good pleading, that the plaintiff had fully performed the contract. This the plaintiff should aver, or, in the alternative, a willingness and readiness to perform, but for some conduct of the defendants sufficient in law to excuse performance. The plaintiff's reply to the defendants' answer admitted that a force pump had not been furnished, but, as an excuse, averred that it had been omitted at the special request and instance of the defendants, and that its value was to be deducted from the contract price. Upon this admission the defendants moved for judgment upon the pleadings. This was overruled, and the plaintiff allowed to amend by inserting in the petition the facts as to the pump. This action of the court is the subject of the first two assignments of error. The insistence of appellants is that this was and is a suit upon the contract, and that it is essential to any recovery in this suit, there being no common counts, that the plaintiff show a substantial compliance with the terms of the contract, and that an admission that the contract was not completed by furnishing the power pump, whether that appears by the reply or on the evidence, is fatal to any recovery in this form of action. Aside from all question as to the materiality of this pump, or the effect of the acceptance alleged, the question presented by the refusal of the court to render judgment in favor of defendants, upon the admission in the reply that the pump had not been furnished, became immaterial upon the subsequent amendment of the petition, so as to show that the omission had been waived. The effect of the agreement by which this pump was to be omitted, and instead thereof a deduction made, was to amend the contract by parol before a breach. The contract was not one required by the statute to be in writing. But, if it had been, the result would be the same, under the ruling in Swain v. Seamens, 9 Wall. 272, 273. That was a bill to compel the defendant to cancel and discharge a certain mortgage according to the terms of an agreement with the complainant. The defendant resisted performance, upon the ground that a building which the plaintiff was to erect on his part did not in dimensions correspond with the stipulations of the agreement. The plaintiff replied that he (defendant) had acquiesced in the change, and had accepted the mill as built and completed. The court held that the defendant was estopped to deny that the contract had not been performed, or to set up the statute of frauds as a defense to the substituted performance, the court saying that:

'When a person tacitly encourages an act to be done, he cannot afterwards exercise his legal right in opposition to such consent, if his conduct or acts of

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