Lombard Water-Wheel Governor Co. v. Great N. Paper Co.

• Decision Date: 01 January 1906
• Citation: 101 Me. 114,63 A. 555
• Parties: LOMBARD WATER-WHEEL GOVERNOR CO. v. GREAT NORTHERN PAPER CO. GREAT NORTHERN PAPER CO. v. LOMBARD WATER-WHEEL GOVERNOR CO.
• Court: Maine Supreme Court

63 A. 555

101 Me. 114

LOMBARD WATER-WHEEL GOVERNOR CO.

v. GREAT NORTHERN PAPER CO.

GREAT NORTHERN PAPER CO.

v. LOMBARD WATER-WHEEL GOVERNOR CO.

Supreme Judicial Court of Maine.

Jan. 1, 1906.

Report from Supreme Judicial Court, Cumberland County.

Actions by the Lombard Water-Wheel Governor Company against the Great Northern Paper Company and By the Great Northern Paper Company against the Lombard Water-Wheel Governor Company. Cases reported.

Judgment for plaintiff in the first-entitled action, and for the defendant in the second-entitled action.

The first suit was an action of assumpsit on account annexed, based upon a written contract, to recover the balance due and interest thereon for automatic water-wheel governors and other appliances sold and delivered by the plaintiff company to the defendant company. The writ also contained a count for "goods bargained and sold," also a count for "labor and materials," also an "omnibus count" of the common form, also a special count for interest, and also a count founded upon the written contract. Plea, the general issue.

The second suit was an action on the case brought as a cross-action for the recovery of damages alleged to have been sustained by the plaintiff company named therein from the alleged insufficiency of the appliances which were the subject of the contract in the first action, and the alleged negligence of the defendant company in attempting to install the same. Plea, the general issue.

Both actions were tried together. After the evidence upon both sides in these two actions was concluded, it was argued that both actions should be reported to the law court "for that court to pass upon and determine all questions of law and fact involved including all questions of damages, and to order such judgments in the two eases as the respective rights of the parties may require."

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

Foster & Poster and Joseph Bennett, for Lombard Water-Wheel Governor Co. Symonds, Snow, Cook & Hutchinson, Charles F. Woodard, and William L. Quimby, for Great Northern Paper Co.

PEABODY, J. The first case under consideration is an action of assumpsit based on a written contract to recover $10,525.25, the alleged balance of the contract price of certain automatic water-wheel governors, and other appliances sold and delivered to the defendant, and interest thereon to the date of the writ, $650, making a total of $11,175.25. The second is an action on the case brought as a cross-action for the recovery of $25,000, damages alleged to have been sustained by the plaintiff from the insufficiency of the appliances which were the subject of the contract upon which the first action is based, and the negligence of the defendant in attempting to install the same in the plaintiff's mill. The two cases were tried together as the same circumstances upon which the defense in the first action is founded formed the basis of the cross-action, and they come before the law court on report.

The contract upon which the plaintiff company sues is in the form of a written proposal by It, dated at Boston, January 24, A. D., 1901, which was accepted in writing by the defendant company January 20, A. D. 1001.

The contract is as follows:

"Great Northern Paper Company,

"194 Washington St., Boston, Mass.

"Gentlemen: We submit the following proposal for water-wheel governing apparatus, to be used in connection with the four (4) grinder water-wheel units in your Millinocket plant.

"The specifications, guarantees and agreements, under which we will furnish you the above governing apparatus are as follows:

"Apparatus. We will sell you four (4) of our type 'B' governors, and four (4) of our '23' balanced relief valves, f. o. b. Boston, Mass., for the sum of seven thousand six hundred dollars ($7,600.00). We will also furnish you with the connections necessary to go between said water-wheels and said governors, and the necessary connections for said relief valves, at the cost of the same to us.

"Guarantee. The governors and relief valves furnished you under this proposal shall be of our regular standard make and quality, and any parts which develop inherent mechanical defects within two months from the time they are put in operation will be replaced by us without charge.

"These governors are guaranteed to give a more accurate speed regulation than any other make.

"Purchase. In consideration of the above guarantee you hereby agree to purchase said governors and relief valves of us at the hereinbefore named price and to pay for the same and the costs of said connections in cash within one month of date of shipping documents. Also to pay for a man to erect and adjust said governors and relief valves at the rate of five dollars ($5.00) per day for his time, with his necessary travelling expenses added thereto, in cash, when the work is done.

"Contract. This contract will not bind the Lombard Water-Wheel Governor Company until countersigned by its general manager and becomes void unless accepted by you within one month from the date first herein above written. The acceptance of this proposal by you within said time will constitute it a binding contract on both sides if so countersigned.

"Yours very truly,

"Lombard Water-Wheel Governor Co.,

"By Allan V. Garratt, Chief Engineer.

""Countersigned:

"Lombard Water-Wheel Governor Co..

"By Henry A. Clark,

"General Manager.

"Jan. 29th, 1901.

"We hereby accept the above proposal. "Great Northern Paper Co.

"Garret Schenck, President"

It appears from the record that the goods were delivered according to the contract f. o. b. Boston, Mass., and were afterwards received by the defendant at its mill at Millinocket, Me., that the articles were of the kind specified in the contract, that certain other articles expressly ordered by the defendant were also delivered, that the prices charged in the writ for all the goods were as specified in the contract, that the automatic governors referred to therein were of the standard type manufactured and sold by the plaintiff, which were known to and had been used by the defendant, and were identical with the articles specified, that the type of governors was recognized as giving the most accurate speed regulation of any make of water-wheel governor in accordance with the guaranty, that bills of lading or railroad receipts were duly sent to the defendant but no payment except $30 on account was made within a month from the date of shipping documents. It further appears that a competent man was furnished by the plaintiff to set up the appliances in accordance with the contract, and that his services at the rate of $5 per day and expenses amounted to the sum charged there for in the account annexed. The report shows that the Millinocket plant has, as part of its mechanical construction, a feed pipe or penstock which brings the water from the head of the canal to a water wheel connected with a grinder unit This feed pipe has a fall of about 110 feet and is about 1,100 feet long and about 10 feet in diameter, and the water column in the flume weighs substantially 6,220,800 foot pounds, and when at working speed contains 222,600 foot pounds of momentum energy or 4,119 horse power. A serious accident to the defendant's mill occurred during the work of installing one of the governors to regulate this momentum.

The defendant denies liability on the three grounds following:

1. That it was not to pay for the governors and relief valves absolutely within one month from the date of shipping the same, but only upon the condition precedent that a suitable man to erect and adjust them was furnished by the plaintiff, and, that he completed his work within that month. This ground of defense cannot be maintained. The contract was one for a sale of certain goods and the title passed upon delivery to the defendant. This delivery was effected in accordance with the terms of the contract by placing the goods on board the cars in Boston. When a purchaser orders goods to be sent to him and delivered to a person named, or to a common carrier...