Francis Bros & Jellett v. Heine Safety-Boiler Co.

• Decision Date: 16 January 1902
• Citation: 112 F. 899
• Parties: FRANCIS BROS. & JELLETT v. HEINE SAFETY-BOILER CO. HEINE SAFETY-BOILER CO. v. FRANCIS BROS. & JELLETT.
• Court: U.S. District Court — Eastern District of Pennsylvania

112 F. 899

FRANCIS BROS. & JELLETT v. HEINE SAFETY-BOILER CO.

HEINE SAFETY-BOILER CO. v. FRANCIS BROS. & JELLETT.

United States Circuit Court, E.D. Pennsylvania.

January 16, 1902

Frank P. Prichard, for Francis Bros. & Jellett.

J. J De Kinder and J. H. McNeal, for Heine Safety-Boiler Co.

J. B McPHERSON, District Judge.

When this case was decided by the court of appeals last year the nominal horse OWER of the boilers in controversy was declared to be one of the important matters to be considered, as will appear by the following quotation from the opinion (109 F 842):

'The specifications of the owner of the building as to nominal horse power of the boilers to be furnished their capacity under ordinary firing, and their maximum capacity under test, concern matters of the first importance. They were fundamental provisions of the original contract for the work. Is it then to be believed that either of the parties to the subcontract intended thereby to supersede these essential requirements of the owner's specifications? Such a supposition is, we think, most unreasonable. We fail to find anything in this record to warrant the conclusion that so radical a departure from the primary contract was contemplated.'

Upon the second trial the decision was put upon the meaning of the Phrase 'nominal horse power,' and the pending motion has required me to reconsider the construction then given to these words. I am still of opinion, however, that the charge was correct, and I refer to it for the reasons that controlled my action. It can scarcely be doubted that it was my duty to construe the language of a written contract,-- both parties having agreed that the words in question had no technical meaning such as would require the testimony of experts to explain,-- and to construe it in its plain and ordinary signification, having due regard to the character of the parties and the subject-matter of the contract. I am still unable to see what other meaning the words can properly bear than the meaning thus given in the charge:

'When this phrase was used, it meant to both parties a boiler of such size and dimension, and having such heating surface and other elements, as are ordinarily and usually found associated with boilers described as boilers of 140 horse power. They did not mean that the boiler they were asking for should be capable of developing 140 horse power, no more and no less; for, as I have said,

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