OPINION
Brace, P. J.
This is
an action to recover the sum of $ 115,392.22 alleged to be
due plaintiff as trustee of the Rohan Brothers Boiler
Manufacturing Company, for the erection and construction by
the said boiler company of nineteen boilers on the premises
of the defendant in the city of St. Louis and to enforce a
mechanic's lien upon said premises for said sum.
The
petition alleges that the boilers so erected had a capacity
of eleven thousand, four hundred horse power, admits the
receipt of $ 115,508.41, and asks judgment for the amount
first aforesaid, as balance due for the horse power alleged
to have been furnished at the rate of $ 18.50 per horse
power.
The
answer admits the furnishing by said boiler company at
defendant's request of a boiler plant consisting of
nineteen boilers, and the payment of the amount of money
credited therefor, and avers that said boiler plant was
furnished by said company pursuant to and under the following
specifications and proposal, which were accepted by the power
company, to wit:
"SPECIFICATIONS
FOR THE ERECTION OF BOILER PLANT OF 6,000 H. P. AND ALL
NECESSARY APPURTENANCES.
"BOILERS.
"Boilers
to be twenty in number and to be at least 300 H. P. each, and
to stand a working pressure of at least 110 lbs. to sq. in.
All material to be Park Brothers 60,000 lbs. flange steel.
All tubes of best standard make, and workmanship to be
first-class in every particular. All bracing and stay bolts
to be of best material and spaced so as to allow a hydraulic
test of 160 lbs. to sq. in. Suitable openings
to be made to allow boilers to be cleaned handily. Boilers to
be built and placed as architect and chief engineer may
direct, and as may best suit building erected by the company.
"FITTINGS,
VALVES, ETC.
"Each
boiler to have a complete set of fittings, as follows: One 2
1-2 inch check, one 2 1-2 blow-off, and one 5 inch pop safety
valve, three gauge cocks, one combination water and steam
gauge, one low water alarm gauge, all of the best standard
make and all steam gauges to be nickel plated.
"HEATERS,
FITTERS, ETC.
"Heaters
to be six in number, 'each of 1,000 H. P. capacity,'
the feed water to pass through a sufficient length of coil to
heat same with exhaust steam to 200 deg., and this water to
be further heated to not less than 255 deg., by taking
sufficient water from boiler to raise feed water to that
temperature. Heater to contain a coke chamber large enough to
properly filter water enough to supply sufficient feed water
for 1,000 H. P. boilers. Heaters to have all necessary
fittings to operate the same, and guaranteed to supply as
pure water as any appliance in use.
"PUMPS.
"Boilers
to be supplied with six Duplex pumps of standard make and of
suitable size to supply all the boilers when operating at a
medium speed. One extra pump to be supplied and to be used as
a fire pump or feed pump in case of the breaking down of
either of the six before mentioned.
"Six circulating pumps to pump sufficient water
into filter to raise the temperature of feed water to 255
deg., before passing through filter. All the above pumps to
be of first-class make and to be kept in repair for
contractor for at least one year.
"FOUNDATIONS,
ETC.
"A
concrete foundation two feet deep, twelve feet wide and the
full length of the building for each of the three rows of
boilers; if any deeper foundation is necessary the company is
to stand the expense of same. All of the brickwork exposed to
the fire to be of fire brick, the balance to be good red
brick. All brickwork to be laid in fire clay.
"CASTINGS.
"Boilers
to have good substantial cast-iron base with ash doors as
near air-tight as possible. One cast-iron plate on top with
suitable manholes to enter smoke box. Grate bars with
suitable openings for firing with nut or slack coal.
"STACK.
"One
stack 13 feet diameter by 178 feet from base. Base, bottom
ring 8 feet long and knees to be 3-8 inch iron, and the
balance 1-4 inch. Suitable foundation bolts and washers
supplied and stack to be constructed so as to resist all
storms. No 'guy rods' to be used. Suitable upstakes
and horizontal flue No. 8 iron as may be designed by the
company's architect.
"STEAM
PIPES.
"All
necessary steam pipes of such diameter, thickness, and length
as may be designed by the company, with all
valves, ells, tees, flanges that may be necessary to connect
boilers with engines. Any expansion joints that may be needed
to be supplied by the company.
"RECAPITULATION.
"Boilers
to be erected, all connections to be made that are necessary
to connect feed pumps, heaters and filters, steampipe to
engines, exhaust pipe from engines, stack erected complete,
all flue connections from boiler, the whole to make a
complete plant ready for steam. All work to be first-class,
and all modern devices used, necessary for the safe operation
of the plant -- the erection to be done under the supervision
of your chief engineer, but any changes made by him to be
adjusted by a committee of arbitration, composed of one
appointed by your company, but not your engineer, one
appointed by us, the third selected by the two mentioned. The
decision of this committee to be final."
"PROPOSAL.
"July
8, 1889.
"Municipal
Electric Light & Power Company.
"Gentlemen:
-- We propose to make and erect boilers as per
specifications, and guarantee plant to be as economic as any
plant in use, for the sum of $ 18.50 per horse power, said
horse power to be demonstrated by actual test.
"We
agree to have fourteen boilers ready for use by December 15,
1889, and the balance by January 20, 1890, and any failure on
our part to comply with the terms of this contract will
compel us to pay a forfeit of $ 25 per day for every day
after the time above mentioned.
"We propose to complete revolving grate bars
and automatic stoker on seventh boiler on north row, for the
sum of $ 3,020.
"Will
complete the thirteen boilers to be fired by hand, so as to
leave as little work as possible when needed to use in
connection with stoker, for the sum of $ 2,250. Or will
complete whole plant with revolving grate and stoker, for $
10,200.
"Rohan
Bros. Boiler Mfg. Co.,
"JJR."
The
answer then denies that the boilers had the capacity claimed,
and alleges that the defendant had paid for more than the six
thousand horse power contracted for, and that the boilers
erected failed to comply with the specifications and proposal
aforesaid, in various particulars to the damage of defendant
in the sum of $ 53,000, for which judgment is asked.
The
reply denies generally the allegations of the answer; admits,
however, certain deviations from the terms of the contract on
various grounds, and alleges that defendant accepted the
boilers as if done in conformity with the specifications.
On the
trial the plaintiff admitted the contract as set out in the
answer, and that such contract was not afterward modified, or
changed by the parties; introduced parol evidence tending to
prove that the work was done under the supervision and
direction of defendant's agent appointed for that
purpose, and was accepted as conforming to the contract;
admitted that the amount paid by defendant is equal to the
full amount of six thousand horse power at $ 18.50 per horse
power, and all extras charged for; and then made the
following offers of proof by oral testimony.
"Mr
Noble: The plaintiff offers to prove by certain
witnesses, by Mr. Rohan and others, that at the time that
this agreement was entered into there was
within the contemplation of the parties as expressed by the
president, then acting, of the defendant company, and by the
chief engineer of the defendant company, then acting, the
mechanical engineer and the superintendent of the works, then
acting, the intention that the contract as made should not be
confined to six thousand horse power, but that the
contractors should have the benefit of all horse power over
six thousand that the boilers would produce within the limits
of the boilers as described in the specifications. We propose
to prove that, not only in general but in particular, by Mr.
Rohan, who was secretary of the plaintiff contracting
company, by Mr. Sutter, the president of the defendant
company, by...
