Grand Avenue Hotel Co. v. Wharton

• Decision Date: 01 March 1897
• Citation: 79 F. 43
• Parties: GRAND AVENUE HOTEL CO. v. WHARTON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

79 F. 43

GRAND AVENUE HOTEL CO. v. WHARTON et al.

United States Court of Appeals, Eighth Circuit.

March 1, 1897

The plaintiff in error, a Missouri corporation, owning and conducting the Midland Hotel at Kansas City, Mo., on August 26, 1891, entered into a written contract with the defendants in error, a Pennsylvania partnership, using the firm name and style of Harrison Safety Boiler Works, whereby the defendants in error agreed to furnish and deliver to plaintiff in error upon the cars at Philadelphia, in the state of Pennsylvania two Harrison safety boiler of 150 horse power each, and the services of an erector to set the same, for the sum of $3,600, to be paid therefor at times specified in the contract, all within 90 days from the time of shipment. The contract contained full, particular, and minute specifications of the material and construction of the boilers in all their parts. The boilers were delivered and set up according to the contract, and by reason of some material accepted by the defendant in error to apply upon the price the claim for said boilers was reduced to $3,555. When said boilers were put in use in said hotel, it was found that from the muddy water of the Missouri river, used in them sediment was deposited, filling, or partially filling, the caps which formed the lower portions of the boilers, and causing incrustations, diminishing the heating capacity of the boilers, and also causing such caps to burst, requiring the fires to be drawn and the replacing of the broken caps with new ones, entailing frequent interruptions in the heating of the hotel. For the purpose of cleansing such water from the mud before use in said boilers, the plaintiff in error, in December, 1891, purchased of defendants in error one Cochrane feed-water heater for $325, on which the defendants in error paid freight to the amount of $13.02 which is the basis of the second cause of action. The third cause of action is for new caps and other material furnished on orders of plaintiff in error for use in repairs of the boilers rendered necessary from the causes aforesaid. The defendants in error were the manufacturers of these boilers. And plaintiff in error, by its answer, alleged that when said written contract of August 26, 1891, was entered into, the defendants in error well knew that the boilers were for use in said Midland Hotel in Kansas City, and also the uses there required of then; that the only supply of water was the Missouri river; and that from these circumstances they impliedly undertook and warranted that such boilers were adapted to the use of said hotel, and to the use of water from the Missouri river; and alleged that by reason of constant incrustations and breakings as above indicated they wholly failed to subserve such uses, entailed on plaintiff in error large expenses and damages, sought to be recovered as a counterclaim, and were worthless, and as such had been removed from the hotel, after defendants in error had made ineffectual attempts to put them in suitable working order. Upon the trial, the plaintiff in error offered to show that before the making of said written contract the agent of defendant in error came to Kansas City to make the contract with plaintiff in error for boilers embodying the Harrison principle, adapted to the use of said hotel and to the use of Missouri river water, must depend in using such boilers, and that this was made known to him by the plaintiff in error before the making of such contract. Also that the boilers furnished were wholly unfit and unsuitable for the use of Missouri river water. Upon the objection that the testimony so offered was...