Livermore Foundry & Machine Co. v. Union Storage & Compress Co.

• Decision Date: 26 June 1900
• Citation: 58 S.W. 270,105 Tenn. 187
• Parties: LIVERMORE FOUNDRY & MACHINE CO. v. UNION STORAGE & COMPRESS CO.
• Court: Tennessee Supreme Court

58 S.W. 270

105 Tenn. 187

LIVERMORE FOUNDRY & MACHINE CO. v. UNION STORAGE & COMPRESS CO.

Supreme Court of Tennessee.

June 26, 1900

Appeal from chancery court, Shelby county; L. H. Estes, Chancellor.

Action by the Union Storage & Compress Company against the Livermore Foundry & Machine Company for breach of contract. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

McFarland & Neblett, for appellant.

Percy & Watkins, for appellee.

BEARD J.

The plaintiff in error in the year 1897 was engaged in the iron-foundry business in Memphis, Tenn.; and the Union Compress & Storage Company owned at that time a plant erected at Clarksdale, Miss., for compressing cotton in bales for shipment to market. The power used by the latter company in doing this work was furnished by two sets of cylinders, in part steam and in part hydraulic, one of which was high and the other low pressure. In the winter of 1896-97 the low-pressure hydraulic cylinder and some of the pipes communicating between it and the compress proper were permanently injured. This disabled the entire plant, and made it necessary for the compress company to have, not only a new cylinder and new pipes, but also other parts of its machinery repaired, in order to put the compress in working condition for the season of 1897-98, which began at that point about the 1st of October. To this end this company entered into a written contract with the Livermore Foundry & Machine Company, which is in the words following, to wit "August 17th, 1897. This contract between the Livermore Foundry and Machine Co., of Memphis, Tennessee, and the Union Compress and Storage Co., of Clarksdale, Miss., witnesseth that the said Livermore Foundry and Machine Co., for and in consideration of a sum of money, amount herein mentioned agree to furnish the necessary labor and material for the repairs on the compress machinery, to wit: To furnish one new cylinder head, drilled and fitted per old one. To furnish one new piston head, fitted with packing rings and springs, with additional metal added. To furnish one new low-pressure hydraulic cylinder. New special bolts for steam-cylinder head, and rear end of both hydraulic cylinders. To repair cracked steam cylinder in best possible manner, and make tight. To reline high-pressure cylinder with seamless drawn tube, so as to be true and smooth. To furnish and set in place one piece of 4-inch, extra-heavy hydraulic pipe, 10 feet 9 inches long, and to bend same so as to conform to shape of old one. It is further agreed that the Livermore Foundry and Machine Co. shall take down and dismantle all above-mentioned parts of machinery, and ship same to Memphis, without expense to the Union Compress and Storage Co., and upon completion of repairs at Memphis to return same to Clarksdale, Miss., and erect same in place, without expense to the said Union Compress Company. The Livermore Foundry and Machine Co. agrees to complete the above-mentioned repairs and press ready for service within the period of fifty-five days from the date of the contract. For the faithful execution of this contract, the Union Compress and Storage Co. agrees to pay the Livermore Foundry and Machine Co. the sum of two thousand and thirty-four dollars, on the following terms: One thousand dollars to be paid when repairs are delivered aboard cars at Clarksdale, Miss., and the balance, $1,034.00, to be paid within thirty days after the completion and satisfactory test of the work. It is further agreed that in the event, during the progress of the work or testing of the press, other work, repairs, or changes, not enumerated in this contract, are made, same shall be paid for by the Union Compress and Storage Company at such rates and prices as may be agreed upon. The Livermore Foundry and Machine Company agrees to allow the Union Compress and Storage Company the sum of six dollars per ton f. o. b. Memphis for scrap iron, and copper at eight cents per pound." Although by this contract the work was to be finished and the various mechanical appliances were to be put in place, ready for the operation of the compress, within 55 days from its date, a much longer period elapsed before this was done. In the early part of November, however, they were adjusted in part, at least, and subjected to a test which was unsatisfactory to Mr. Leach, who was on the ground as a skilled employé, representing the plaintiff in error in placing the new machinery, and in the experiment made. Finally, after material changes had been made under his direction, he notified the officers of the compress company that he would be ready to make another test on the 11th of November, and asked that he be supplied by the company with a sufficient working crew for this purpose, which was done. In making this test it was discovered that the defect or defects in the head of the hydraulic cylinder constructed by plaintiff in error, which were discovered at the first experiment, still existed, and that some additional work was required to correct them. This was done, and on the 12th of November a working crew was again furnished to Leach, and the machinery of the plant was put in operation in the morning, and, with stoppages for short intervals, to make some immaterial changes, was continued in operation until about 4 o'clock in the afternoon, up to which time about 400 bales of cotton had been compressed. About that hour an explosion took place, inflicting serious damage on the plant itself, and killing one of the employés of the compress company instantly, and fatally wounding two others. Upon examination it was disclosed that the head of the low-pressure steam cylinder, as well as that of the low-pressure hydraulic cylinder, had blown out, and other parts of the machinery had been seriously injured. Before the accident the compress company had paid $1,000 on the contract, but this payment was made with the express understanding that the compress company waived no right against the foundry company by reason of any breach of its contract. This action was brought to recover this sum, together with damages sustained by the company for the injury sustained by the plant from this explosion, and for rental value of the compress during its period of enforced idleness following the accident, upon the theory that the imperfect and unworkmanlike cylinder furnished by the plaintiff in error was the occasion of the accident and loss. The trial of the case resulted in a verdict which is in these words: "We, the jury, find for the plaintiffs, and assess their damage for injury and cost of repairing machinery and premises, and replacing same, caused by breach of contract and cylinder explosion, $3,500; for money paid on contract, $1,000.00, with interest; for loss of rental value of compress, caused by breach of contract and cylinder explosion, $3,000.00; total, $7,500. W. H. Montgomery, Foreman."

The first error assigned is that there is no material evidence to support the verdict of the jury. In considering this assignment, the well-settled rule is as announced in Rapid-Transit Co. v. Seigrest, 96 Tenn. 120, 33 S.W 920, that, in order to impeach in this court a verdict approved by the trial judge, the complaining party must take as true the strongest legitimate view of the testimony against him, and be prepared to show that it affords no support to the verdict. So that the testimony in a given case, viewed from different points of observation, should suggest two theories, both of which may be naturally deduced from it, one of which, if adopted by the jury, makes reasonable their verdict, and the other would leave it without material support, this court will assume that the one which sustains the verdict was the one adopted by the triors of fact, and maintain their finding. Bearing in mind this rule and its corollary, we will now examine briefly the facts as disclosed in the case. But before doing so it is proper to give some idea of the location and operation of these cylinders and their connections. They were placed in a horizontal position. The low-pressure steam cylinder was in the rear, and the hydraulic cylinder manufactured by the plaintiff in error was immediately in front; the two being joined firmly together by bolts. Inside these cylinders was a piston common to both. By the use of a lever connected with proper valves in these cylinders, this piston was moved back and forth. Steam was let in behind the piston, which as it expanded pressed it forward, and as this movement continued its plunger came in contact with a volume of water contained in the hydraulic cylinder, and this was moved up towards its head, being pressed against it with a force equal to from 350 to 400 tons, as might be required, which, through pipes communicating with the compress, began the work of compressing a bale of cotton, which was completed by a still more powerful force furnished by the high-pressure steam and hydraulic cylinders. As has already been said, the heads of these two low-pressure cylinders, as the result of the explosion, were blown off, and the theory of the plaintiff below was that this resulted from the fact that the defendant had unskillfully cast the cylinder; that its head was of inferior material, and so imperfectly and unskillfully done that it would not stand the strain put upon it in the careful operation of the machinery; and that, much before it had received the full force of the strain it should have borne if properly constructed, the head blew off, and thus relieved from resistance, and under the influence of the propelling steam in its rear, the piston moved forward with such energy as to break off the head of the steam cylinder. The record shows that, after the casting was done, Garside, who was the manager of the ...