Hooks Smelting Co. v. Planters' Compress Co.
| Decision Date | 05 March 1904 |
| Citation | 79 S.W. 1052 |
| Parties | HOOKS SMELTING CO. v. PLANTERS' COMPRESS CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Phillips County; Hance N. Hutton, Judge.
Action by the Hooks Smelting Company against the Planters' Compress Company. Judgment for defendant on its counterclaim, and plaintiff appeals. Reversed.
The Planters' Compress Company was the owner of a cotton compress at Helena, in this state. In this compress there are what is called a "worm" and a "sector," each of which is necessary to the operation of the compress. The worm, which is a short spiral or screw made to revolve on a shaft, was used to drive the sector; the threads of the worm being geared into the teeth or cogs on the rim of the sector, so that, when the worm revolved, power was transmitted to the sector. This rim of the sector, called a "segment," to which the cogs were attached, was made separate from the body of the sector, so that, when the cogs wore out or broke, another segment with cogs could be fitted to the sector. As the segments on the sectors were worn, and the worms were also worn and broken, it was necessary to have them replaced with new ones. So, on the 3d day of January, 1898, the manager of the compress addressed the following letter to the Hooks Smelting Company, of Philadelphia: The smelting company on January 6th replied, through its secretary, that it would provide the phosphor bronze castings in the rough at 18 cents per pound f. o. b. Philadelphia, and allow 9 cents for the old screw worms delivered in Philadelphia. He also stated that the company could not make the castings from the old worms, but said, "You will have to furnish us with a pattern, or we can, if you desire, have the same made at our expense." To this letter Faulkner, the secretary of the compress company, replied that the company wanted to know what the casting would cost, ready to put on the shaft, stating that To this Cempini, secretary of the smelting company, answered that "we could not make an estimate of cost of pattern making and furnishing without first seeing the old worm." Afterwards the compress company shipped some of its segments and worms to the smelting company, and about the 1st of July the president and secretary of the compress company called at the office of the smelting company, in Philadelphia, and explained to the secretary of the company the nature of the casting wanted. As the compress company desired to contract for completed castings ready to be put up for use, and as the smelting company only made rough castings, it could not at that time name a price for the pattern making and machine work, as that was work that would have to be done by other parties. A machinist and pattern maker were afterwards called in, but the machinist desired some other measurements, and so the matter was postponed to a later date; it being agreed that the machinist would make a drawing of the machinery, with blank places indicating measurements desired, and would forward the same to the secretary of the compress company, at Helena, who would have measurements made and return. This was done, and on July 21st the secretary returned the drawing, with measurements, and requested the smelting company to make a bid on two bronze castings, "one right and one left; also upon eight segments, four right and four left." On August 3d the secretary of the smelting company wrote the compress company, and quoted prices on the machinery as requested; the prices on the worms being stated as follows: "Phosphor bronze worm castings in the rough as quoted Jany. 6, 1898 at 18 cents per pound." To this letter the secretary of the compress company replied as follows: The smelting company, by its secretary, replied on 10th of August as follows: No reply was made to this letter, but on the 2d day of September the compress company telegraphed as follows: "Wire immediately when compress machinery was shipped." The smelting company replied that it was impossible to fix a definite date, that the patterns would be ready next week, and that "we are hurrying as much as possible." To this the compress company replied that the receipt of the message had "thrown much confusion in the camp," and urged them to spare no expense in rushing the work. The remainder of the correspondence need not be referred to here. The castings were shipped on the 30th of September, and received in Helena on the 7th of October. The worms proved to be too great in diameter to go under the arms of the compress. It was claimed by plaintiff that this defect was due to error in the measurement furnished by defendant, while defendant claimed that it had ordered the worms to be made the same size as the old worms shipped to plaintiff, but that plaintiff made the body of the worm straight, instead of being slightly concave, so as to conform to the curve of the rim of the sector, as the old worms were made. Some idea of this difference may be had by reference to illustration of Hindley's screw in Webster's or the Century Dictionary. After some correspondence with the smelting company, the compress company, on 8th of November, ordered new worms from St. Louis. These worms were shipped on the 13th of December, and the compress started again about the 20th of that month. The compress company refused to pay the smelting company for the worms made by it, on the ground that they were too large and worthless, and on the 28th of February, 1899, the smelting company began this action to recover the sum of $520.87, balance claimed to be due for the work done by it. The itemized statement filed with the complaint is as follows:
2 phosphor bronze castings .......... $259 02
8 iron castings ..................... 128 38
2 worm patterns and coil box ........ 70 00
2 segment patterns and coil box ..... 115 00
Finishing 2 worms and 8 segments .... 124 00
Mdse. ............................... 16 35
________
Total .......................... $712 75
Credit by old worms ................. 191 88
________
Balance sued for ............... $520 87
The plaintiff charged 18 cents per pound for old worms in the rough, and allowed credit for metal in old worms at 9 cents per pound.
The compress company filed an answer and counterclaim in which it alleged that the worms were not made in accordance with the contract of plaintiff, and were too large, and worthless; and it asked, among other items of damage, the amount paid employés while compress was idle on account of defect of worms, and for rental value of compress, and for other items, amounting in all to $7,322.50. The plaintiff filed a reply to this counterclaim, and on the trial the court, among others, gave to the jury the following instruction relating to the measure of damages, at request of defendant: "If the jury finds from the evidence that, at the time of the making of such contract, special circumstances were imparted to the plaintiff by the defendant, and that said special circumstances disclosed to the plaintiff that the probable loss which would accrue to the defendant by reason of the failure of the Hooks Smelting Company to carry out its said contract would be other and greater than would accrue in the usual order of things from a breach of such contract, then the defendant is entitled to recover of the plaintiff, in addition to those damages which would naturally and ordinarily flow from the breach of the contract, in the usual course of things, such damages as, in the light of such special circumstances so disclosed to the plaintiff, were reasonably within contemplation of the parties to such contract at the time of the making thereof, and which damages may be ascertained with a reasonable degree of accuracy." The court refused to give the following instruction (No. 7) requested by plaintiff: "The jury is instructed that if they find from the testimony that the worms and segments contracted to be made by plaintiff for defendant were constructed according to measurements furnished by said defendant, and were of proper material, they will find for plaintiff, although they further find that, after the same were so constructed, they proved to be entirely worthless." But the court modified the instruction by inserting immediately after the words "measurements" the words "worms, segments, and other information," and gave it as modified, to which modification the plaintiff excepted. There was a verdict and judgment in favor of the defendant for the sum of $5,450, from which judgment plaintiff appealed.
P. O. Thweatt and Rose, Hemingway & Rose, for appellant. M. L. Stephenson and Jno. J. & E. C. Hornor, for appellee.
RIDDICK, J. (after stating the facts).
This is an action brought by the Hooks Smelting Company, of...
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