Tilton v. Miller

• Decision Date: 03 January 1871
• Citation: 66 Pa. 388
• Court: Pennsylvania Supreme Court
• Parties: Tilton <I>versus</I> Miller & Co.

Page 388

66 Pa. 388

Tilton versus Miller & Co.

Supreme Court of Pennsylvania.

November 4, 1870.

January 3, 1871.

November 4th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 94, to October and November Term 1869.

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T. Schoyer and C. B. M. Smith, for plaintiff in error.

J. H. Hampton (with whom was A. H. Miller), for defendants in error, cited on the 17th error: Addison on Contracts 231; Ollivant v. Bayley, 5 Ad. & Ellis, N. S. 288; Chanter v. Hopkins, 4 M. & W. 399; Carnac v. Warriner, 1 C. B. 356; Mason v. Chappel, 15 Grattan 72; Misner v. Granger, 4 Gilman 69; Getty v. Rountree, 2 Chandler 28; Brown v. Murphee, 31 Miss. 91; Kellogg v. Denslow, 11 Conn. 411.

The opinion of the court was delivered, January 3d 1871, by AGNEW, J.

A careful examination of the sixteen errors assigned to the charge of the learned judge of the District Court, and his answers to the points, brings to light no material error in his instruction to the jury. An elaboration of authorities to a jury is not useful, and sometimes tends to confuse, but here the judge so clearly stated the points for the attention and examination of the jury, it does not seem probable they could have been misled by the detailed reference to authorities. It is not necessary that a judge should encumber his charge with a discussion of the law, but rather to give definite instructions to the jury; the Act of Assembly allowing him to furnish his reasons, which he may always subjoin if explanation be necessary.

This was a contract to make 1000 dozens of gas generators as per sample at $2 per dozen. The judge was therefore clearly right in instructing the jury to ascertain first what was the contract sample. There was evidence tending to show that alterations had been made in the sample at the request of the defendant. He was therefore right also in directing the jury to ascertain from the evidence whether the sample was so altered, and if so, what the alterations were, and thus to arrive at the true contract sample — the model by which the plaintiffs were to make the gas generators called for by their contract. He was right in directing them to determine upon the evidence whether the gas generators made by them for the defendant corresponded with the sample, and if they did, the plaintiffs thereby fulfilled their contract and were not responsible for the result — that is for the operation of the generator. They did not contract to make an article which would produce a certain result, but only to make one to correspond exactly with the proposed model. If this were done fully and fairly their whole duty was performed, and they had a right to recover for so many as they had made and delivered according to their contract.

Admitting then the correctness of this instruction, and that the learned judge was right in ruling that correspondence between the article made and the sample was the true and only question, and that the maker is not liable for the result expected to be produced, was he right in his rulings on the evidence? Is there no difference between the liability of the maker for this result, and the evidence which the result affords of a want of correspondence between the thing made and the model? Clearly there is a marked distinction between the propositions. A result or effect produced may be most convincing corroborative evidence of a difference between the model and the imitation. Especially is this true of those things which lie out of the range of ordinary observation, and are known only to experts. The expert may be called to prove the actual difference, but when this is done, it does not follow that the legal measure of proof is full. A fact which directly proves the truth of an assertion may undoubtedly be adduced to corroborate and confirm it. If an expert state a fact which cannot be appreciated by...