Rollins Engine Co. v. E. Forge Co.

• Decision Date: 01 November 1904
• Citation: 73 N.H. 92,59 A. 382
• Parties: ROLLINS ENGINE CO. v. EASTERN FORGE CO.
• Court: New Hampshire Supreme Court

59 A. 382

73 N.H. 92

ROLLINS ENGINE CO.

v. EASTERN FORGE CO.

Supreme Court of New Hampshire. Hillsborough.

Nov. 1, 1904.

Transferred from Superior Court; Wallace, Judge.

Assumpsit by the Rollins Engine Company against the Eastern Forge Company for the breach of an implied contract to manufacture, upon the plaintiffs' order, a safe and proper piston rod for an engine. Trial by jury, and verdict for the plaintiffs. Verdict for plaintiffs set aside, and new trial granted.

The plaintiffs are engaged in manufacturing engines at Nashua, and the defendants in making forgings at the same place. In July, 1902, the defendants received from the plaintiffs a written order for "one steel piston rod as per enclosed blue print 21x42." The blue print contained a drawing of the desired rod with the dimensions of its various parts, and the words "rough turn to figures." The figures "21x42" in the order mean that the cylinder for which the rod was intended was 21 inches in diameter with a 42-inch stroke. The defendants manufactured the rod under the order, and delivered it to the plaintiffs, who finished it by turning off one-eighth of an inch of material and by polishing the surface, and used it in the construction of an engine which they were under contract to furnish to one of their customers. After the engine had been in use about a week, it was damaged by the breaking of the rod. The plaintiffs claimed that the rod broke because it was made of poor material. The defendants claimed that the break was due to other causes, and their evidence tended to show that the rod was manufactured by them from a steel billet purchased from a reputable dealer, and in which there was no defect discoverable by ordinary care.

Subject to the defendants' exception, the court refused to give the jury the following instructions: "(1) If you find for the plaintiffs, the measure of damages will be the difference between the value of the piston rod as it was before it was broken and afterwards. (2) The defendants did not impliedly warrant the material of which the piston rod was made, which was bought of another manufacturer, to be free from all defects, but only to be free from defects of which the defendants must have been informed if due care had been used, and against which reasonable diligence might have guarded. (3) The defendants did not impliedly warrant the piston rod to be free from all defects arising from the process of manufacture, but only to be free from defects of which the defendants must have been informed if due care had been used, and against which reasonable diligence might have guarded."

Subject to the defendants' exception, the jury were instructed as follows: "In the case of executory contracts—that is, contracts which are to be performed in the future— for the manufacture of articles for a special use, the law implies a contract that the articles to be manufactured shall be reasonably fit and proper for the use for which they are ordered and designed. There was under this contract an implied warranty upon the part of the defendants that the piston rod, which they manufactured upon the plaintiffs' order, should, when finished, be reasonably fit and proper for the purposes for which the defendants knew it was designed—that is, to be used as a piston rod to an engine. Such warranty extends to the defects in the piston rod, both in respect to the material of which it was made and as to its make or manufacture, which rendered it unfit for the purposes for which it was designed."

The question of the suitability of the piston rod for the purposes for which it was designed was submitted to the jury. In the course of the trial, the defendants having offered evidence tending to show that the quality of steel could be shown by a chemical test, their counsel, in the presence of the jury, asked the court to order that a piece of the broken rod be cut off and given to them for the purpose of a chemical analysis. The court denied the request as matter of discretion, and the defendants excepted.

In his closing argument the plaintiffs' counsel said: "There is no testimony in the world so biased as the testimony of an expert. I am tired of this kind of testimony from experts, who are just as much parties to this defendants' case as the attorneys who stand here. * * * You know that you can get as many experts on one side as on the other, if you go to work and try." To these remarks the defendants excepted.

George B. French, for plaintiffs.

John Herbert and Burnham, Brown, Jones & Warren, for defendants.

PARSONS, C. J. The theory of the plaintiffs, upon which the case was tried and submitted to the jury, cannot be sustained. The contract was in writing. A warranty not expressed or implied from the terms used cannot be added to by implication of law or parol proof. Whitmore v. Iron Co., 2 Allen, 52, 58; Goulds v. Brophy, 42 Minn. 100, 43 N. W. 834, 6 L. R. A. 302. The written order which was the basis of the contract was for a steel piston rod of specified dimensions. The plaintiffs were engaged in the manufacture and sale of steam engines at Nashua, and the defendants in the making of forgings at the same place. It is not suggested that the defendants were manufacturers of steel, or that the plaintiffs understood them to be. Read in the light of the surrounding circumstances, the order means that the defendants should secure by purchase the necessary steel, and forge the same into the specified shape with the required finish, to be used by the plaintiffs for a piston rod in some steam engine to be sold by them. The contract was not for a piston rod for the plaintiffs' engine. It is distinguishable from the contract in Randall v. Newson, 2 Q. B. Div. 102, which was for a pole for the plaintiff's carriage, and from that in Brown v. Edgington, 2 M. & G. 279, which was for a rope for the plaintiff's crane. The plaintiffs did not rely upon the defendants to furnish a suitable piston rod for any particular engine, or for a steam engine generally. They prescribed the material and dimensions of the forgings desired; and the fact that, when finished by the plaintiffs and made a part of an engine, the rod proved unsuitable, does not establish the defendants' liability. For any defect due to the kind of material or dimensions prescribed, the plaintiffs, and not the defendants, would be responsible. Nashua Iron & Steel Co. v. Brush, 91 Fed. 213, 33 C. C. A. 456. In these respects the plaintiffs relied upon their own judgment, and not upon the defendants'. Jones v. Just, L. R. 3 Q. B. 197, 202, 203.

"If an article or fabric in the particular line of his profession or business is ordered of, or contracted for with, a manufacturer, for a special and designated purpose, and the parties agree that it shall be constructed of a certain kind of materials, but the selection of the particular articles to be used, and the way and manner of using and adapting them to the fabric, in the completion of the work, are left to the choice and judgment of the latter, without any special stipulations relative thereto, he will not in that case be liable for any loss or damage which may result from the imperfection of, or natural defects in, that kind of material; but he will be held to have impliedly warranted that he possesses the knowledge and skill requisite to use them properly and in the most advantageous manner, and that, in answering the order or in fulfilling his contract, he will use all reasonable care and skill in the selection and use of them; and if, through his failure in either of these respects, the article or fabric furnished is unsuitable or insufficient for the purpose for which it was supplied, he will be responsible in damages therefor." Cunningham v. Hall, 4 Allen, 268, 274, 275.

The obligation, implied "from natural reason and the just construction of law" (3 Bl. Com. 162), of one who undertakes to perform service for another, is due care. He contracts to exercise the diligence and skill of the average man of the ability which he professes in like work. If he exercises such care, he is not liable, in the absence of express contract, merely because the expected result is not obtained. Leighton v. Sargent, 27 N. H. 469, 59 Am. Dec. 388; Spead v. Tomlinson, 73 N. H. ——, 59 Atl. 376. If the plaintiffs had taken to the defendants a steel billet, to be forged by them into a particular shape for a piston rod, the defendants' contract would have been to exercise the care and skill of average persons engaged in like work. Similarly, if the plaintiffs had employed the defendants to select for them a billet of steel suitable for such forging, the defendants would not be understood to warrant the correctness of their judgment merely because they undertook the commission. For failure to detect a defect which could not be found by ordinary care in the exercise of the skill they had or professed to have, they would not be liable. The fact that the plaintiffs by one order employed the defendants to select the steel and forge it into a specified shape for a certain use does not make the measure of their liability different from what it would have been under the separate contracts suggested. The defendants' evidence that the defect in the steel was undiscoverable by ordinary care tends to establish the possibility of an undiscoverable, inherent defect in the material of which the plaintiffs stipulated the rod should be forged. Having relied upon their own judgment as to the material to be used in the manufacture, or desiring an article necessarily made of such material, they cannot hold the defendants responsible for a defect which the skill and care which the defendants professed to possess, and which they were bound to exercise, could not discover. Ordinary care is such care as persons of average prudence exercise under like circumstances. Nashua Iron & Steel Co. v. Railroad, 62 N. H. 159, 161. The defendants knew the forging was to be used for a...