Sanderson v. Trump Mfg. Co.

Citation180 Ind. 197,102 N.E. 2
Decision Date27 May 1913
Docket NumberNo. 21,593.,21,593.
PartiesSANDERSON et al. v. TRUMP MFG. CO.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by the Trump Manufacturing Company against Edwin N. Sanderson and others. Judgment for plaintiff for less than the relief demanded, and defendants appeal, and plaintiff prosecutes cross-errors. Affirmed on defendants' appeal and reversed with instructions on plaintiff's appeal.Marshall L. Howell, Demas D. Bates, Gilbert A. Elliott, and Vitus G. Jones, all of South Bend, for appellants. A. G. Graham, G. A. Crane, and F. H. Wurzer, all of South Bend, for appellee.

COX, J.

The St. Joseph & Elkhart Power Company was organized and incorporated in this state in 1900 for the purpose of building and maintaining a dam across the St. Joseph river east of Mishawaka, at a point known as Twin Branch, and erecting and maintaining in connection therewith a power house with hydraulic and electrical machinery for the purpose of generating and selling electrical current. Thereafter this company let the contract for all the work of construction to the Union Construction Company, a Connecticut corporation, which in turn sublet the work to appellants, engineers and contractors of New York City, doing business in the firm name of Sanderson & Porter. Appellants thereupon went into the open market to buy materials for building and equipping the dam and power house. They received from appellee, a corporation of Springfield, Ohio, engaged in the business of manufacturing water turbines, a written proposal to furnish certain described water wheels or turbines required in the equipment of the plant. Appellants met this proposal by a writing denominated specifications for water turbines. These writings with accompanying blueprints were mutually accepted and, it is agreed, became the contract between the parties on July 19, 1902. The contract was for two different classes of turbines, known respectively as “Exciter Line Turbines” and “Generator Line Turbines.” This controversy involves only the latter class. Five of these turbines were to be set on a horizontal shaft so attached that they would operate in unison to turn the shaft which was to be coupled to a generator to produce the electric current. Each set of five turbines so set on a single shaft was termed a unit. They were to be installed in the power house of the power company by appellants. Four of these units were ordered by appellants at different times and furnished by appellee under the contract and installed by appellants as received in the power house of the St. Joseph & Elkhart Power Company as the parties contemplated when the contract for them was made. Payments were made by appellants from time to time, when, claiming that the turbines had failed, in actual work, to produce the power and efficiency guaranteed by appellee, they refused to make further payments, and this action was brought by appellee to recover the balance claimed to be due, with interest.

The complaint was in four paragraphs. The first declared on an oral contract. The second sought to recover the value of the machinery without reference to a contract. The second paragraph was taken out of the case, by a voluntary dismissal by appellee. The first paragraph is not of importance as it is agreed by the parties, and the court found, that the contract was in writing. The third paragraph, after allegations of the making of the contract and referring to it as an exhibit made a part of the complaint, is as follows:

“That under the terms of said contract the plaintiff sold to the aforesaid defendants two exciter line turbines and four generator line turbines, to be made by plaintiff and delivered to the said defendants f. o. b. cars at plaintiff's factory in Springfield in the state of Ohio, for all of which the said defendants, by the terms of said contract, promised and agreed to pay to plaintiff the sum of $32,420, payable in installments as in said contract provided;

“And plaintiff further avers that under the terms of said contract, and at the special instance and request of said defendants, it furthermore furnished materials and performed labor for which said defendants undertook and agreed to pay this plaintiff the reasonable value thereof; and that the reasonable value of such additional materials furnished and labor performed is $318.50;

“That said defendants from time to time made payments under said contract for said turbines and said additional materials furnished and labor performed amounting in all to $22,792.77; a bill of particulars of all of which is filed herewith and made a part hereof, and marked ‘Exhibit B’;

“And plaintiff further avers that it did deliver said turbines f. o. b. cars at their factory in Springfield, Ohio, to the said defendants; and that this plaintiff has fully performed all of the terms and conditions of said contract by it to be performed, and that said defendants have received and accepted said property, but have failed to pay plaintiff according to the terms of said contract; that there is now due and unpaid the residue of $9,945.73; that of said residue $2,516.25 was due and payable on or before May 26, 1905, and $7,429.48 was due and payable on or before June 26, 1905; that there has accrued on said unpaid balance interest at 6 per cent. per annum, amounting to $1,355.27; and that there is now due plaintiff from said defendants under said contract, and wholly unpaid, the sum of $11,301.

“Wherefore plaintiff sues and demands judgment for twelve thousand ($12,000) dollars, and for its costs herein and for all other proper relief.”

The fourth paragraph is not different in legal effect from the third. It alleges the sale and delivery to appellants of two exciter line turbines and two generator line turbines under the contract at the contract price at one time, and two additional generator line turbines at a later time by a later written order referred to as another exhibit. Otherwise the allegations and the demand are the same as in the third.

Appellants answered the complaint in five paragraphs. The first is a general denial and the second a plea of payment. The third paragraph sets up certain guaranties and conditions relating to the power and efficiency of the turbines and alleges their failure, after installation, to meet these requirements as to power and efficiency, for which failure appellee's right to recover anything is denied. This paragraph of answer is conceded by appellants' counsel to be merely an argumentative general denial.

The fourth paragraph of answer is pleaded as a counterclaim and in it the execution of the contract shown by the exhibits made a part of the complaint and a part of this counterclaim by reference. It is then alleged that pursuant to that contract appellee did furnish to appellants, together with the other turbines and materials not in controversy in this appeal, the four units of “Generator Line Turbines” in question; that by the terms of the contract appellee warranted that each of these units could and would, under ordinary conditions, generate 1,750 horse power under a working head of 18 feet and under such conditions would make 120 revolutions per minute; that appellee further warranted that each of these units would furnish 1,200 horse power under a working head of 15 feet and under such conditions maintain a speed of 120 revolutions per minute; that all of these turbines were furnished by appellee and received by appellants under an express warranty in the particulars named. It is then alleged that these units will not furnish 1,750 horse power each under a working head of 18 feet and make 120 revolutions per minute as warranted, but, on the contrary, will not furnish over 1,200 horse power each; that they will not furnish 1,200 horse power each under a working head of 15 feet, but, on the contrary, will not furnish over 800 horse power under the working head of 15 feet. It is then alleged that it was warranted by appellee that each unit should be of such dimensions and construction as to easily and without undue fatigue of any part, develop and deliver the combined power of wheels at full gate, on one end of the shaft when operating under a maximum effective head of 22 feet, measured from the surface of the water in the tailrace under the turbines to the surface of the water in the forebay above; that the said wheels were not of dimensions and construction so as to, without undue fatigue of any part, develop and deliver the power as in said contract set out and specified, but, on the contrary, they have wholly failed to furnish the amount of power warranted by the terms of the contract. It is further alleged that under the specifications which formed a part of the contract these units were furnished for direct coupling to a shaft for the generating of an alternating current of 1,000 kilowatts of electricity and were warranted to run at a constant speed of 120 revolutions per minute under all variations of the load within their capacity, and under all variations of head down to 15 feet, but that they will not perform the work as specified and warranted. It is further alleged that these turbines were warranted to develop an efficiency of not less than 75 per cent. under actual working conditions at a constant speed of 120 revolutions per minute under an effective head of 18 feet with a three-fourths gate opening, but that they will not develop such efficiency under such conditions. It is then alleged that appellants have at all times been ready and willing to perform all their part of the contract, but that appellee failed to do so, and that by reason of appellee's failure in the particulars alleged appellants owed appellee nothing, but that they had been damaged in the sum of $12,000, for which sum they asked judgment.

The fifth paragraph is also pleaded as a counterclaim and its allegations are the same as the fourth...

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1 cases
  • Sanderson v. The Trump Manufacturing Co.
    • United States
    • Indiana Supreme Court
    • 27 Mayo 1913
    ... ... self oiling, bearing, and generator coupling with key ... Purchaser is to pay all freights, cartage, handling and ... erection expenses, and to furnish all common and other labor ... for erection. These are a part of a contract between Trump ... Mfg. Co. and Sanderson and Porter, dated June 13, 1902, and ... accepted July 19, 1902." ...          The ... proposal of appellee and the specifications of appellants ... were mutually accepted and became the contract between the ... parties, July 19, 1902. On June 6, 1903, appellee ... ...

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