Hallidie Co. v. Washington Brick, Lime & Mfg. Co.

• Decision Date: 03 September 1912
• Citation: 70 Wash. 80,126 P. 96
• Court: Washington Supreme Court
• Parties: HALLIDIE CO. v. WASHINGTON BRICK, LIME & MFG. CO. et al.

126 P. 96

70 Wash. 80

HALLIDIE CO. v. WASHINGTON BRICK, LIME & MFG. CO. et al.

Supreme Court of Washington

September 3, 1912

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by the Hallidie Company against the Washington, Brick, Lime &amp Manufacturing Company and the Washington Brick, Lime & Sewer Pipe Company. Judgment for plaintiff. Defendants appeal. Affirmed in part, and in part reversed and remanded.

Charles P. Lund, for appellants.

Graves Kizer & Graves, of Spokane, for respondent.

FULLERTON J.

On October 22, 1908, the Hallidie Machinery Company entered into an agreement in writing with the Washington Brick, Lime &amp Manufacturing Company by the terms of which it agreed to sell and deliver to the manufacturing company a 72X18 high pressure Eric City boiler and a 14X30 rolling mill type Corliss engine, with certain enumerated fixtures, for a consideration of $4,840.62. By the terms of the sale the seller guaranteed that the engine, when running at a speed of 110 revolutions per minute at about one-quarter cut-off, under a steam pressure of 150 pounds, would develop 252 indicated horse power. The machinery was furnished and installed as agreed upon, and the purchaser made payments on the purchase price thereof aggregating $2,090.90. The manufacturing company was engaged in the manufacture of brick, and had extensive machinery for that purpose, which the boiler and engine were intended to operate; but it was found after ample trial that they would not develop sufficient power to operate it to its capacity, and complaint thereof was made to the seller to that effect. The manufacturing company contended that the fault lay with the engine; that it would not develop 252 indicated horse power when operated under the conditions and to the capacity set forth in the contract of sale. Experts were sent to examine the engine, and several changes were made in the feed and exhaust valves; but it was found impossible to make it operate the purchaser's brick machinery to its full capacity. The experts thereupon made tests of the engine to ascertain whether its actual capacity was equal to its rated and guaranteed capacity. These experts differed as to results; those employed by the seller finding that it would develop an indicated horse power in excess of the guaranteed horse power, while those employed by the purchaser were unable to make it show that amount of power. All of the experts agreed, however, that the boiler generating the steam supply was insufficient in capacity to furnish steam sufficient to operate the engine up to 250 indicated horse power; their testimony being to the effect that it requires a boiler of greater capacity than 150 horse power to serve an engine of 252 horse power.

Subsequent to the tests, further negotiations were had between the parties without result. Finally, on June 4, 1909, the seller wrote the purchaser the following letter: 'Spokane, Wash., June 4, 1909. Mr. Jos. H. Spear, Pres. and Gen. Mgr., Wash. Brick & Lime Mfg. Co., City--Dear Sir: Confirming our conversation with you this morning about your Murray Corliss engine at Freeman, wish to say that we will hereby offer you the following concession, as we wish to dispose of this matter to your entire satisfaction: We will furnish and install, at our expense, a 15-inch diameter cylinder and piston to take the place of the 14-inch size now in use on the engine, which 14-inch cylinder is to be returned to us. In doing this, we wish you to clearly understand that this is a concession on our part as a matter of policy, because we want your good will and future business, and future business for Murray Iron Works in this territory, and this change is not made because the engine will not deliver the horse power named in the contract. The engine which we furnished you will unquestionably deliver the contract power under proper conditions, and in furnishing you a 15-inch cylinder we are giving you a reserve of power beyond that contracted for. Trusting that this will close this matter satisfactorily to you, we are, very truly yours, Hallidie Machinery Company, B. B. Truett, Local Manager.' To this letter the purchaser replied as follows: 'Spokane, Wash., June 5th, 1909. Mr. B. B. Truett, Local Manager, Hallidie Machinery Co., Spokane, Wash.--Dear Sir: Replying to your favor of the 4th inst., we note your proposition to install at your expense a 15-inch diameter cylinder and piston to take the place of the 14-inch size now in use on the engine at Freeman. Recalling the terms of your contract, we do not think this is a question for us to pass upon. Under the terms of the contract you have the right to make good, if possible, anything that may be wrong with the engine, and it was for this purpose that we advised you after starting the machinery that the engine was not meeting the conditions of your contract. We have waited patiently something over three months for you to ascertain and correct whatever the trouble might be so as to deliver to use the power that your contract covered. If the 15-inch diameter cylinder and piston which you propose to put in will do this, it is satisfactory to us; but we are not willing to name in advance that the placing of a 15-inch cylinder will be satisfactory to us. We want to see the results of same, and we do not waive any of our rights under the contract. We have waited very patiently for 90 days, and have been working under great difficulties, with a lessened output and a high fuel expense, in order to operate and fill the contracts as nearly as possible that we had assumed. Anything that you do to remedy the evils now existing in connection with this engine, we would like you to do as quickly as possible, and if after these changes are made the engine will give us the 250 h. p. named in your contract on an economical fuel basis, we will be pleased to accept same; but I am not an expert, and I do not wish in advance to commit myself or waive any of the rights that this company may have in connection with the contract made with you for supplying this power. Yours respectfully, Washington Brick, Lime & Mfg. Co. by Jos. H. Spear.' Subsequently the seller installed a new cylinder in the engine, making it at the request of the purchaser a 16-inch diameter cylinder, instead of a 15-inch, which, on the installation by the purchaser of an increased boiler capacity, operated to the purchaser's satisfaction.

This action was brought to recover the balance unpaid on the contract price of the engine and boiler. The plaintiff alleged that, subsequent to the sale of the boiler and engine, the Hallidie Machinery Company transferred and assigned to the plaintiff its business, good will, and all of its assets, which included the account against the purchaser of the boiler and engine. It alleged, further, that subsequent to entering into the contract the defendant Washington Brick, Lime & Sewer Pipe Company purchased the business, good will, and all of...