Pullmanco v. Metropolitan St Ry Co

• Citation: 39 L.Ed. 632,157 U.S. 94,15 S.Ct. 503
• Decision Date: 04 March 1895
• Docket Number: No. 146,PALACE-CAR,146
• Parties: PULLMANCO. v. METROPOLITAN ST. RY. CO
• Court: U.S. Supreme Court

157 U.S. 94

15 S.Ct. 503

39 L.Ed. 632

PULLMAN PALACE-CAR CO.

v METROPOLITAN ST. RY. CO.

No. 146.

March 4, 1895.

This action was brought by the Pullman Palace-Car Company to recover from the Metropolitan Street-Railway Company the sum of $54,219.70, with interest from March 14, 1888, alleged to be due to it under a certain contract for the construction of cars for the defendant company.

The principal defense was that the defendant rightfully rescinded the contract, and tendered the cars back to the plaintiff, who refused to receive them, and that, after such rescission and refusal, the defendant company stored the cars in a proper place, subject to the order of the plaintiff. The defendant also, by way of counterclaim, sought damages against the plaintiff for failure to perform the contract.

The action arises out of certain facts set forth in a special finding by the court below. Those facts are substantially as follows:

Prior to May 15, 1887, the Metropolitan Street-Railway Company, a corporation of Missouri, was engaged in the construction of a double-track railway on certain streets in Kansas City. The maximum grade of its line was 13 and 14 feet ascent in a distance of 100 feet. There were a number of grades on the line running up to 10 per cent., and also numerous sharp curves.

On the 15th of May, 1887, the defendant's roadbed having been constructed and the tracks laid, its chief engineers wrote to Charles Pullman, the general agent of the Pullman Palace-Car Company, at Pullman, Ill.: 'We write to say that we are now ready to take cars for our Wyandotte and Twelfth street lines, and should be glad to have you call on us at your convenience.' Upon receiving this letter, Pullman, who had a general knowledge of the grades and curves of the defendant's line, went to Kansas City to discuss the proposed contract. From Kansas City he went to Chicago, and from the latter place, under date of June 21, 1887, sent to the president of the defendant company a letter written by the general manager of the plaintiff, under date of June 21, 1887, as follows: 'I beg to inclose herewith contract with specifications attached, executed by me in duplicate, for the building of twenty-five combination closed and open street cars for your company. Kindly sign, and return to me one copy of contract for our files. You will notice in the specifications that the space for the lettering has been left blank, and I would be glad if you would indicate on the specifications returned the lettering you desire applied to the cars.'

The contract referred to in that letter was in these words: 'Pullman's Palace-Car Company will build for the Metropolitan Street-Rai way Company twenty-five combination closed and open cable cars, as per general specifications hereto attached and made a part of this agreement, and deliver the same f. o. b. [free on board] Pullman Junction, Kensington, Ill., on or before October 10th, 1887, delays by fires, strikes, and unavoidable hindrances excepted, for the sum of two thousand dollars each. Terms, cash on deliveries. Cars to be inspected and accepted at our works. Your written acceptance hereof will constitute a contract mutually binding upon both companies.' To this contract were appended the above general specifications. These specifications called for cars in length 34'9" 'over all,' in width 6'6" or more over sides. They contained nothing relating to brakes except the following: 'Brakes to be operated by gripmen, with lever, both trucks.'

On the 27th of June, 1887, defendant's chief engineers wrote to the plaintiff as follows: 'Your letter of the 21st, inclosing contracts and specifications in duplicate for the twenty-five combination cars for our Twelfth street line, addressed to our president, Morse, has been referred to us for attention in his absence, and we inclose you with this one copy, duly executed by us on behalf of the company. Will you kindly advise about when we may expect to get the general plans which Mr. Pullman, when here, promised to let us have?'

Between the 1st and 16th of July, 1887, the plaintiff's engineer, Twyman, visited Kansas City, stating that the general purpose of his visit was to determine upon the general features of the cars, the shortest curve and other physical conditions of the road, the radius of the shortest curve a car would have to go around, and to arrange with reference to the outside width and the extra length over all, the relative position of the trucks, the height of the wheels, the steps and the seats, and the distance between the seats, etc. He was at the office of the defendant for some time, had access to the plans and profiles of the road, and, while in Kansas City, certain specifications were approved by defendant's engineers, and were submitted to him. These specifications increased the length of cars to 38 feet 'over all,' and prescribed their width, width of floor frame, height from top of track to top of floor, distance between center of trucks, wheel base of truck, distance from front of car to center of forward truck, length of close part of car, length of open portion, as well as of rear platform, size of wheels and 16 cross seats to be fixed as decided.

The plaintiff then proceeded with the work of construction. The defendant gave no direction in relation to the brakes on the cars otherwise than that they should be extra heavy and extra powerful; nor were any plans or specifications for brakes furnished to the defendant during their construction. The brake put upon the cars was designed and constructed by Twyman, plaintiff's engineer.

In December, 1887, in response to plaintiff's request that defendant send one of its employees to Pullman to inspect the cars, Lawless, defendant's superintendent, went there for that purpose. Ten or twelve cars were then shown to him as completed, and standing in the shops of plaintiff on the floor where they were run out. Lawless made a thorough examination of them, inside and out, and upon examining the brakes by having them worked from within, and observing their operation and application while under and at the side of the car, announced himself as satisfied with them, and requested the representative of the plaintiff present to finish the others up in the same way, and forward them. No further request was made by Lawless for testing the cars, and no other facilities were offered by the plaintiff for making such test and examination.

The first five cars were shipped by plaintiff February 24, 1888; the next shipment, of eight cars, was on March 1, 1888; the next, of two cars, March 17, 1888; five cars were shipped March 27, 1888; and the remainder on the 30th day of March, 1888.

When the cars reached Kansas City, they were stored in defendant's power house, because the eastern extension of its line was not then in readiness for operation. They were taken into the house by passing them over a curved track from the street. This curve was 30-foot radius. When the first lot of cars were being passed around this curve, it was found that the wheels 'bound against the sills.' Thereupon defendant's engineer teiegraphed plaintiff as follows: 'Forward truck of cars will not pass around 30-foot radius curve. Lengthen syay-chains, and cut away lower corner of middle sills.' To this telegram plaintiff answered: 'Telegram received. Will make alterations requested.'

On the 22d of March, 1888, before all the cars had been shipped, the east end of the Twelfth street line was completed so that a car could run over that part of the line. Defendant's superintendent took out one of the cars for trial, when difficulty about the brakes manifested itself. The difficulty was that, when the brakes were so adjusted that they could be used to stop the car on a straight, level track, in passing around a curve or up a grade they would bind against the wheels, causing them to slip, and at times throwing the car from the track. If the brakes were so adjusted that they would not bind on the curves or grades, then they would not work on a straight, level track so as to stop the cars.

On the 23d of March, the defendant, by its superintendent, wrote to the general manager of the plaintiff: 'We tried one of your cars over the line yesterday, and found that the brakes would not work satisfactorily; in fact, were perfectly useless. I think the reasons for this are: There being so many connections, and consequently so much lost motion, that before the shoes hug the wheels, the brake lever comes to the limit of the quadrant. Before starting out with the car, we adjusted the brakes so that the shoes touched the wheels, but, notwithstanding this, we could not lock the wheels, or even hold the cars on the lightest grades. As a perfect working brake is an imperative matter with us, I would like to hear from you on the subject, and what remedy you propose.'

In response to this letter, Twyman, the plaintiff's engineer, came at once to Kansas City, and attempted to remedy the trouble with the brake, and, on leaving, claimed that he had done so.

On the 5th of April, 1888, the manager of the plaintiff wrote to the defendant's president: 'The entire lot of twenty-five cars have been delivered, thirteen of them having been shipped in February. Bills have been rendered your company for the amount of $50,000, being the original contract price without extras, bills for which will be sent your auditor in a few days. Will you kindly direct a prompt remittance for the bills already rendered?'

The defendant's whole line was ready to be opened on or about the 7th or 10th day of April, 1888, when the cars for the first time were placed on its road. This was shortly after Mr. Twyman had left Kansas City.

Upon the recurrence of the trouble in operating the cars, the defendant, under date of April 11, 1888, wrote to plaintiff: 'I have delayed answering your letter of April 5th for some days, as I wished to see your cars in practical operation before...