Hooks Smelting Company v. Planters' Compress Company

• Decision Date: 05 March 1904
• Citation: 79 S.W. 1052,72 Ark. 275
• Parties: HOOKS SMELTING COMPANY v. PLANTERS' COMPRESS COMPANY
• Court: Arkansas Supreme Court

79 S.W. 1052

72 Ark. 275

HOOKS SMELTING COMPANY v. PLANTERS' COMPRESS COMPANY

Supreme Court of Arkansas

March 5, 1904

[Copyrighted Material Omitted]

Appeal from Phillips Circuit Court, HANCE N. HUTTON, Judge.

Reversed.

STATEMENT BY THE COURT.

The Planters' Compress Company was the owner of a cotton compress at Helena in this state. In this compress there is what is called a "worm" and a "sector," each of which are 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 sector 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:

"We are needing one or two bronze screw worms for our Campbell press, and have been informed by the former manager of the press that you made the worms for him. Please inform me if you still have the moulds, if you can make them, and at what figure. These worms are required to stand great strain, and have to be made of a peculiar phosphor bronze. If you have not the patterns, we could send you one of the old worms. We have three of the old worms, and would probably want you to take them.

* * * "L. BURTON."

The smelting company on January 6, replied through its secretary that it would furnish 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 "we have had considerable trouble in getting this metal to the proper temper; one firm made it too soft, and another too hard." 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 first 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 21 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 rights and four lefts."

On August 3 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 January 6, 1898, at 18 cents per pound."

To this letter the secretary of the compress company replied as follows: "Your letter of 3d, offering prices on work formerly left there is received, and the prices are satisfactory. You will begin work immediately, and rush to completion. * * * We must have them as soon as possible."

The smelting company, by its secretary, replied on 10th of August as follows: "We are in receipt of your valued favor of 6th inst. and note contents; for which accept thanks. It is impossible just to state a definite date when the castings will be shipped, as it depends a great deal upon the pattern maker and machinist; but we will hurry the work, and make shipment with all possible dispatch."

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 they had ordered the worms to be made the same size of the old worms shipped to plaintiff, but that plaintiff made the body of the worm straight, instead of slightly concave, so as to conform to the curve of the rim of the rector, 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

Merchandise

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 employes 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 are 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 word "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.

Judgment reversed and new trial ordered.

P. O. Thweatt, and Rose, Hemingway & Rose, for appellant.

Appellant is not responsible for the delays of the independent contractors who made the patterns and smoothed the rough castings. 53 Ark. 503; 55 Ark. 510. Appellee cannot hold appellant liable for the breaking of the...