Erie City Iron-Works v. Barber

• Decision Date: 06 February 1888
• Docket Number: 259
• Citation: Erie City Iron-Works v. Barber, 118 Pa. 6, 12 A. 411 (Pa. 1888)
• Parties: ERIE CITY IRON WORKS v. P. M. BARBER ET AL
• Court: Pennsylvania Supreme Court

12 A. 411

118 Pa. 6

ERIE CITY IRON WORKS v. P. M. BARBER ET AL

No. 259

Supreme Court of Pennsylvania

February 6, 1888

Argued March 22, 1887

ERROR TO THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY.

No. 259 January Term 1886, Sup. Ct.; court below, No. 18 December Term 1887, C.P.

On November 8, 1877, an action in case was brought by P. M Barber and A. B. Henderson, partners as P.M. Barber & Co. against the Erie City Iron Works. A narr. was filed on December 3, 1877, with three counts.

The first count set out that the plaintiffs owned and operated a steam lumber mill in Lycoming county, and the defendant company at Philadelphia were manufacturers and dealers in steam engines, boilers, etc.; that on February 18, 1874, the plaintiffs employed the defendants to construct for them a horizontal tubular boiler of three eighths inch thick flange iron for said mill for the sum of $1,300; that the boiler constructed and set up in the plaintiffs' mill "was carelessly, negligently and improperly made of an inferior quality of iron, to wit, C. H. iron, and not of flange iron," and that "by reason of the premises and of the said boiler being carelessly and negligently and improperly made and constructed of poor, inferior and worthless iron, the said boiler exploded, whereby the said boiler was utterly destroyed and made useless, and the said lumber mill of said plaintiffs, and the materials, lumber steam engine and machinery therein" were destroyed.

The second count averred that the boiler was to be "a tubular boiler, shell of flange iron, three eighths inch thick, head one half inch thick, of best flange iron straight seams, double riveted, the whole boiler to be well stayed and well made;" that the boiler constructed and set up "was carelessly, negligently and improperly made of C. H. iron of an inferior quality, and of less than three eighths of an inch in thickness, and not of flange iron;" following substantially the first count in other respects.

The third count averred that the boiler was to be as described in the second count; that the defendants "made a certain boiler, which said boiler was made and represented to be made of C. H. iron, and not of flange iron," and that the defendants "falsely and maliciously represented to said plaintiffs that the said boiler so made and constructed and delivered was in every respect as good as the boiler so ordered, as aforesaid, and would safely carry 120 lbs. of steam, and that the only difference between the said boilers was in a name;" that the plaintiffs, relying upon the said representations, set up the said boiler in their mill; that the said boiler "was carelessly, negligently and improperly made of poor, inferior and worthless iron, and of less than three eighths of an inch thick, and not as warranted and represented by the said defendant," and that by reason of the premises, etc.

To this narr. the defendants pleaded not guilty, on September 24, 1880.

On January 10, 1882, a jury was called, and, eo die, the plaintiffs moved for leave to amend the several counts of the narr. in substance as follows:

First count. That defendants were manufacturers of boilers, and were desirous that plaintiffs should purchase one made by them, and thereupon represented to them that it was a good and safe boiler, and fit and proper to be used and could be used with safety; that said boiler was equal in quality to a boiler made of, to-wit: flange iron; that plaintiffs thereon purchased said boiler upon terms that it could be safely used in their lumber mill; breach, that defendants negligently and improperly conducted themselves in selling, preparing and manufacturing said boiler; that it was dangerous, defective, and wholly unfit and unsafe to use, and afterwards exploded, etc.

Second count. That defendants being desirous plaintiffs should purchase a boiler of their manufacture, "fraudulently, falsely and deceitfully stated that said boiler was safe and fit for use, and was of as good quality as a boiler made of, to-wit: flange iron; that plaintiffs, believing this, purchased said boiler and placed it in their mill; that said boiler was greatly inferior to one made of flange iron, and was totally unfit and unsafe for use, as defendants knew, and said boiler did, by reason of the premises, explode, etc.

Third count. That defendants, the manufacturers, being desirous that plaintiffs should purchase one of their boilers for use in plaintiffs' mill, in consideration of said purchase warranted said boiler "to be equal to, to-wit: flange iron, and to be entirely fit and safe for use;" that plaintiffs, relying on said warranty, purchased said boiler for use in said mill; but defendants were guilty of a breach of duty, deceit and negligence in so as aforesaid warranting said boiler, because said boiler was, on the contrary, not equal to flange iron, and was entirely unsafe and unfit for use, of which defendants had notice; that plaintiffs, confiding in said warranty, used said boiler in their mill, where said boiler, by reason of the premises, exploded, etc.

The defendants objected to the allowance of the amendments, (1) because they set forth a different cause of action from that counted on in the original narr.; and (2) that the statute of limitations had run against the cause of action set forth in the amendments.

The court, ALLISON, P.J., allowed the amendments.

The defendants then, by leave of court pleaded, causa actionis non accrevit infra sex annos.

The trial resulted in a verdict for the plaintiffs for $8,440. A judgment entered upon this verdict was reversed by this court: Erie City Iron Works v. Barber, 102 Pa. 156.

The record having been remitted, on April 11, 1883, on motion of plaintiffs' attorneys, leave was granted to amend the pleadings as follows:

By inserting in the third amended count, after the word "defendants," and before the word "warranted," the words "falsely and fraudulently." And by inserting before the word "warranty," and after the word "said," the words "false and fraudulent." And by inserting after the words "had then and there notice," the words "and well knew at the time of making the said warranty."

At a second trial on April 18, 1883, before PEIRCE, J., there was a verdict for the plaintiffs for $8,038. The judgment entered upon this verdict was subsequently reversed in this court: Erie City Iron Works v. Barber, 106 Pa. 126.

At a third trial on November 13, 1885, P. M. Barber, a plaintiff, testified, inter alia, that the boiler ordered having arrived he had an interview with Mr. Selden, the president of the defendant company, when the latter said they had not made the boiler they agreed to make, and had sent him one of C. H. iron instead of flange iron: "I said, if the boiler we had at our place was as good as the one described in the Heathcote proposition, I would take it; if it was as good as the boiler we were to have. He said it was as good a boiler. . . . He said it would carry 120 lbs. of steam. . . . He said he would guarantee this boiler equal in every respect to the one I was to have." Mr. Selden, in behalf of defendants, testified, inter alia: "Q. When did you first know of the Heathcote proposition? A. I never heard of it until after the explosion occurred." Afterwards, the defendant company put in evidence a letter from their agent, Mr. Shearman, written before the boiler was ordered, stating to Selden that they must get below Heathcote's proposition to sell the boiler at all. Mr. Selden, referring to the interview with Mr. Barber, further testified: "I furthermore said to him that I considered C.H. No. 1 iron fully as good in the shell of a boiler of that kind as flange iron and in some respects better. . . . I said materially that it was as good for the purpose as flange iron." On cross-examination: "Q. Have you no reason why C.H. No. 1 should be more suitable in boilers fired the other way, fire in contact with shell? A. Yes, I do know one reason -- I know C. H. iron is a lower grade of iron; it should be a stronger boiler, fired as P.M. Barber & Co.'s was. . . . Q. I ask you whether, in your judgment, C.H. No. 1 iron is the proper iron to use in the construction of a boiler to be used next the fire? A. I can only answer that by saying that there is a great difference of opinion. I did not say it. I do not think it ought to be used ordinarily." In the reports of this cause hereinbefore referred to, the facts are more fully stated.

The court, BIDDLE, J., charged the jury and answered the defendant's points as follows:

It is contended by the plaintiffs in this case that they bought a suitable boiler, which, after having been put in the place for which it was intended, in consequence of its defective material and construction, exploded, doing them great damage, for which they ask damages at your hands against the Erie City Iron Works.

That the contract was made with Mr. Shearman is not denied. Whether he made that contract for himself or for the Erie City Iron Works is not of the slightest importance in this case.

This boiler was sent to the plaintiffs, and they heard that it was not what they ordered and refused to receive it. Mr. Selden, the president of the Erie City Iron Works, who made the boiler, then had an interview with Mr. Barber, one of the plaintiffs, and admitted that it was not made in accordance with the order sent to them, yet he made certain representations to Mr. Barber which induced his firm to accept the boiler. These representations it is contended were untrue, and it is for this deceit that this action is brought.

In order to make the president liable for a false representation it is not absolutely necessary to show that he knew as a fact what he stated was false; if he made a representation not...