Reaney v. Culbertson

• Decision Date: 08 September 1853
• Citation: 21 Pa. 507
• Parties: Reaney v. Culbertson.
• Court: Pennsylvania Supreme Court

21 Pa. 507

Reaney v. Culbertson.

Supreme Court of Pennsylvania.

September 8, 1853

1853

1. By an agreement in writing the plaintiffs agreed to build a high-pressure engine of the first class, to be delivered at a time designated. The plaintiffs were to " find one man to put up said engine and stay with it two weeks after completion." The defendants were " to furnish all such help as may be required by our man for the putting of said engine and boilers in operation."

It was Held, 1. That the construction of the contract was for the Court and not for the jury. 2. That it was not obligatory on the plaintiffs to direct the construction of the foundations of the mill or walls of the building for which the engine was intended.

2. A principal is liable for the act of his agent only when the latter is acting within the scope of his authority; and if the agent of the plaintiffs for the special purpose of putting the engine in operation was consulted by the defendants as to the construction of the walls of the building, the plaintiffs are not answerable for his mistakes in respect to the latter.

3. The defendants were entitled to a deduction from the price of the engine for loss sustained by stoppage of the mill occasioned by defects in the construction of the engine--also for loss occasioned by their hands being unemployed from the same cause.

ERROR to the Common Pleas of Union county.

This was an action of assumpsit by Reaney, Neafie, and Levey, as partners, v. John Culbertson, Benjamin Griffey, and Charles Gudykunst, founded on two promissory notes, dated September 2, 1851; one for $637.50, at four months, on which was endorsed a credit of $500.00 on 28th January, 1852; and the other for $337.50, at six months. The plea was, payment with leave; and, subsequently, set-off.

The plaintiffs were manufacturers of steam-engines, in Philadelphia. In February, 1851, two of the defendants applied to them for a steam-engine for a saw-mill, and a written agreement was entered into, which was as follows " Memorandum of an agreement entered into this 22d day of February, A. D. 1851, by and between James Culbertson and Benjamin Griffey, of the first part, and Reaney, Neafie & Co. of the second part, viz.: The parties of the second part agree and bind themselves to build or cause to be built, one horizontal high-pressure engine of the first class--cylinder 12 1/4 inch bore, 36 inch stroke; with 3 cylinder boilers, 30 inch diameter, 30 feet long; fire front, grate bars, smoke stack, and cast-iron plate for pipe, and everything complete of the best material and workmanship, delivered on board a boat at our wharf in six to seven weeks from date. The parties of the second part to find one man to put up said engine, and stay with it two weeks after completion. The parties of the first part to pay all expenses of getting said engine to its destination, and risk of same, and to furnish all such help as may be required by our man for the putting of said engine and boilers in operation, and to find the man with good and comfortable board and lodging at their expense. The parties of the first part agree and bind themselves that they will pay, or cause to be paid, $2550 in the following manner: One-fourth when said engine is shipped in Philadelphia; one-fourth when said engine is started; the balance in two negotiable notes, one at four months, the other at six months, dated from last payment."

On the part of the plaintiffs it was alleged that, in pursuance of the agreement, the plaintiffs had an engine constructed which, it was said on their part, was finished a short time after the time fixed in the agreement; but that owing to a break in the canal, the engine did not reach its place of destination (which is near where Clinton county joins Union) for some weeks. That the plaintiffs sent a man (Mr. Kirk) to superintend the putting up of the engine. Before his arrival the masonry had been commenced. That Mr. Griffey, one of the defendants, was a millwright, and had a draft. The engine was put up, and the plaintiffs' agent remained with it for two weeks. That the defendants were called on for the money and notes mentioned in the agreement, when they claimed a deduction on account of the engine not having arrived in time. To this Reaney, one of the plaintiffs, objected; but at length, for the purpose of having the matter settled, he consented to a deduction of $300, and executed a paper to that effect, in which it was stated, that if some small articles which defendants found fault with, proved defective the plaintiffs would furnish others when notified. Some money was paid, and notes given for the balance. That the defendants paid $500 on one of the notes. It was afterwards alleged on the part of the defendants, that the engine was not made according to contract, and that the foundations were not properly constructed. Suit was brought on the notes.

On the trial, on the part of the defendants it was offered to prove (inter alia ) that the heater pipes bursted, in consequence of which the mill was stopped some time; and it was also offered to prove the damage sustained in consequence of the saw-mill standing idle for some time; also to prove the expense of reconstructing the walls on which the machine had been placed. To this the plaintiffs' counsel objected; but the Court overruled the objection and admitted the evidence.

On part of the plaintiffs, points were submitted as follows:

1. That under the agreement of 22d February, 1851, the plaintiffs were not bound to superintend the putting up of the foundation for the engine and boilers.

2. The plaintiffs were not bound to direct the manner of constructing the foundation walls.

3. That the defendants were not entitled to a deduction for loss sustained in consequence of the mill standing idle.

4. That if any part of the machinery was defective, it was the duty of the defendants to give the plaintiffs notice of the defect in a reasonable time, and if they failed to do so, they cannot be relieved from payment.

In answer to the first exception, WILSON, J., charged the jury inter alia, that the agreement was that the plaintiffs shall find one man to put up the engine. It does not specify the work to be done or attended to by the man putting it up, and what would be required of the person superintending the putting of it up will depend on what you shall find was necessary under the agreement. If it was the mere setting up of the engine and boilers properly on the foundation, in order to put the machinery in operation, and not the superintending of the building of the foundation, for any defect or damage in consequence of mal-construction of the foundation, the plaintiffs would not be answerable; and under the evidence in this case we submit it to you whether the plaintiffs were or were not bound to superintend the putting up the foundation for the engine and boilers.

In the answer to the second point he declined to say there was no evidence that the plaintiffs were not bound to direct the mode and manner of construction of the foundation walls, but that question was left to the jury to say under the evidence whether it was provided for by the agreement of the parties; and that this must depend not alone on the agreement itself, but what was the duty of the man sent by the makers to put the engine in operation, as to which a resort was had by the parties to oral testimony.

To the third point he answered, that the question as to deduction depended on whether the jury find that the mill stood idle in consequence of the deficiency or construction of any part of the work that was to have been done by the plaintiffs. If so, the law would not be as here stated. But if otherwise, the plaintiffs...