Kernan v. Crook, Horner Co. , 100 Md. 210 ( 1905 )

The appeal in this case is from a judgment of the Court of Common Pleas of Baltimore City in favor of the appellees against the appellant. The suit was brought in assumpsit on the common counts, and a special count to recover for furnishing and erecting, in the appellant's theatre, an engine and dynamo with a switch board and other appliances. The articles thus supplied by the appellees, when connected with a boiler already on the appellant's premises and the system of wiring already installed there, were intended to produce an electric current sufficient for about 950 lights distributed around the interior of the building.

The contract declared on in the special count of the declaration originated in the sending on Dec. 22d 1899, by the appellees to the appellant of the following letter:

"Mr. James L. Kernan, Proprietor Howard Auditorium, City.

Dear Sir: We submit for your consideration the following proposal. We propose to furnish and erect at your Auditorium on North Howard street one 100 horse power automatic engine and one 1000 light dynamo. We propose to furnish and erect this engine and dynamo on foundation complete, the engine to be connected with steam pipes from boiler and the exhaust pipe up through the building with hood on same. We also propose to connect exhaust from the engine to your heating apparatus, and also make provision for a direct connection of steam, so that the building can be heated by live steam when the engine is not in operation.

We propose also to furnish with this plant a switch-board and all the necessary connections including an excitor for the dynamo and all the belting. We will also furnish if necessary any converter that is required in the building.

This estimate is intended to put this engine and dynamo up complete, and in running order, and we guarantee to do the same within three weeks from date of order. We have the engine and dynamo on hand. We will complete the above in first class manner for the sum of $3,500.

Soliciting your order we beg to remain,

Yours truly,

Crook, Horner Co."

The appellant declined to accept the proposal at the price of $3,500, whereupon the appellees reduced the proposed price to $3,000 and the appellant accepted the proposal.

There is evidence in the record tending to prove the following facts, towit: It was known to both parties to this contract that the engine and dynamo proposed to be supplied were not made by the appellees but were second-hand ones which had been purchased by them from sources which they made known. The appellees furnished and erected the various articles and performed the work called for in the contract, in the theatre of the appellant, and also cleaned out the tubes of the boiler and made sundry repairs to it in order to put it in working order, and also supplied the material and performed the labor charged for in the account filed with the declaration in addition to those called for in the contract. After the engine had been connected with the boiler and the dynamo and other appliances connected with the wires in place at the theatre, the lighting plant thus made up frequently if not currently proved inadequate to supply the 950 lights in position there and furnished an insufficient and unsteady illumination of the building. The plant was kept in operation by the appellant from when it was turned over to him in about the middle of March until the close of his theatrical season in the middle of May. During this period the appellees with his permission made sundry repairs to and changes of portions of the plant to improve its service, but the appellant was frequently compelled to procure from the Electric Light Company a portion of the electric current necessary to keep in operation the 950 lights which the plant was expected to provide for.

On May 10th the appellant wrote to the appellees this letter.

"Baltimore, Md., May 10, 1900.

"Messrs. Crook, Horner Co., North Howard street, Baltimore.

Gentlemen, I regret to inform you that it will be impossible for me to accept the electric light plant which you have installed in the Howard Auditorium, as it is entirely unsatisfactory. My season will close on Saturday night of the present week, and I would suggest that you remove the machinery as soon thereafter as possible.

"If I should decide during the summer to install a larger plant with sufficient capacity to carry the lights of the entire house, I will be pleased to consult with you and give your firm the preference.

"Yours truly,

James L. Kernan."

The appellees insisted that they had complied with their contract and refused to take back the portion of the plant that had been furnished by them and demanded payment therefor, and subsequently brought the present suit and recovered the judgment from which the appeal was taken.

The evidence as to the true cause of the failure of the electric plant to do satisfactorily the work expected of it was quite conflicting. The appellant offered much testimony of experts and others tending to prove that the failure was occasioned by the inefficiency of the engine and dynamo and also by the improper manner in which they had been coupled in their erection, which rendered it impossible to continuously maintain the high speed of the dynamo essential to the production of a sufficiently strong and steady current to supply the 950 lights required for illuminating the theatre. The appellees on the other hand offered the testimony of one of their firm, and of the engineer who ran the engine and of two electrical engineers tending to prove that the several stipulations of the contract had been performed and that the engine and dynamo were in good condition and properly erected and were capable of furnishing and did at times furnish sufficient current for about 1,000 lights; but that the boiler with which the appellant attempted to operate them was too small to constantly generate the quantity of steam requisite to drive them at the speed necessary to furnish the desired current, and also that some of the wires of the lighting system in use at the theatre were so small that they caused a loss of the current in its transmission over them. The appellee Crook testified without contradiction that all of the appliances, furnished under the contract by his firm to the appellant, except the engine and dynamo were new and that the appellees had paid $1,150 for those appliances and their installation at the theatre.

The principles of law controlling the determination of this case as it was presented in the lower Court are familiar and can be stated without great difficulty. The contract of the appellees made in conformity to their written proposal of December 22d 1899, did not contain a warranty either express or implied that the engine, dynamo and other articles supplied by them would, when erected in the appellant's theatre, efficiently light the 950 lights already installed in that building. This is not the case of a manufacturer contracting to supply an article which he manufactures to be applied to the particular purpose for which it is to be used by the purchaser, where there arises by operation of law, as an incident of the sale, an implied warranty that the article sold shall be reasonably fit for the purpose to which it is to be applied. The law applicable to that class of cases is clearly stated and well supported by authority in the recent case of Queen City Glass Co. v. Clay Pot Co., 97 Md. 440.

In the present case it was known to the purchaser that the engine and dynamo, which were the most important articles included in the sale, were not manufactured by the vendors and were not even new, but were second-hand articles which they had in their possession. Still more important is the fact that these articles did not of themselves when erected and put in good running order constitute a complete electric light plant. The essential elements of steam power to operate the engine and wires to transmit the electric current when generated by the dynamo, were to be supplied by the purchaser and for those purposes he furnished an old boiler which had been used for heating the building and a system of wiring which had also been in use before. Out of that state of facts no implied warranty arose that, as a result of the performance by the appellees of their contract, the 950 lights of the theatre should be kept supplied with a sufficient illuminating current.

All that the appellees contract amounted to, beyond an undertaking to supply and erect complete and in running order the articles mentioned in their proposal and make the connections therein specified, was a representation that when they were so erected and connected the engine would be capable of furnishing 100 horse-power and the dynamo of supplying current sufficient for 1000 electric lights. These representations being material ones the appellees were bound to an essential and substantial fulfillment of them, but not to a strictly and technically accurate one as would have been the case if they had been warranties. The appellees, upon proof that they had performed their contract as above stated and had essentially and substantially complied with those representations, were entitled to recover the contract price.

The taking over by the appellant to his own control of the articles supplied and erected by the appellees under their contract, and operating them by his own employees for two months until the end of the season amounted to an acceptance of them, unless the jury believed his testimony that while he was so using the plant he repeatedly informed the appellees that it was not doing its work properly and was not satisfactory and that he continued using it only in reliance on the assurance of the appellees that they would make it supply the proper amount of light and that if they failed to do so they would take out the articles supplied by them and they should not cost the appellant anything. If he once accepted these articles he could not afterwards reject them or rescind the contract. Cole v.Hines, 81 Md. 476. If they proved to be defective or unsound or did not reasonably and substantially answer to the representations made at the time of their sale to him and he suffered any loss or damage therefrom he was entitled to rely on those facts by way of defense or recoupment and thereby diminish the amount of the recovery against him.Abbott v. Gatch, 13 Md. 315; Warfield v. Booth,33 Md. 72-3; Graff v. Hensel, 33 Md. 165; Sentman v. Gamble,69 Md. 306; Harmon v. Bannon, 71 Md. 428.

If on the other hand the jury believed that the articles furnished and erected by the appellees under their contract were never accepted by the appellant and that the engine was not capable of developing 100 horse-power or the dynamo of generating current sufficient to reasonably supply 1,000 electric lights, after the said engine and dynamo had been completely erected and finished by the appellees, then the appellant having by his letter of May 10th, 1900, declined to accept the said articles and requested their removal by the appellees the latter were not entitled to recover anything for them.

It appears from the record that the appellees as plaintiffs offered five prayers and the appellant as defendant offered seventeen. The Court granted the plaintiffs first, second, third and fourth and the defendant's third, fourth, sixth and seventh prayers and rejected all of the others.

We will first notice the prayers which were granted. The plaintiffs first prayer correctly states the law upon the theory that they had fully complied with and performed their contract. Their second prayer requires the jury to allow the plaintiffs the reasonable worth of certain articles charged in the account filed with the declaration, exclusive of those called for in the contract, if they should find that they had been delivered to the defendant upon his order and accepted by him. Their third prayer instructs the jury that, if they find that the plaintiffs performed their contract as set forth in the first prayer, then the defendant had no right to require the removal of the plant because he thought that it would not accomplish the work that he desired. Their fourth prayer asserts that if the jury find that the plaintiffs substantially and in good faith executed their contract they were entitled to recover the contract price notwithstanding the fact that there was some delay in the completion of the installation of the electric plant. As there was no attempt made to insist upon the time limit of the contract this prayer was properly granted.

The defendant's third prayer instructed the jury that if, after the plaintiffs had finally and completely installed the electric light plant, it failed to supply current for 1,000 lights in a reasonably efficient manner because of the want of capacity or by reason of improper installation of the dynamo, the plaintiffs were not entitled to recover anything for the plant unless the defendant accepted the same, and in that event they could only recover what it was reasonably worth. His fourth prayer asserted that his use of the electric plant up until the middle of May did not amount to an acceptance of it if he was induced to continue to use it by the plaintiffs assurance that if he would do so they would make it work properly or take it out and charge him nothing for it. His sixth prayer asserted that if the plant failed to supply the 1,000 light current by reason of its faulty installation by the plaintiffs they were not entitled to recover the contract price, but if the defendant had accepted the plant they were entitled to recover what it was worth and no more. His seventh prayer asserts that there is no legally sufficient evidence in the case of the negligent operation of the light plant by the defendant's employees.

These granted prayers of the plaintiffs and defendant correctly and fully stated the law of the case, and gave to the latter the benefit of every proposition to which he was fairly entitled.

Of the defendant's rejected prayers Nos. 1 and 1 1/2 assert that there was no evidence legally sufficient to show that the dynamo did or could supply current sufficient for 1,000 lights. Nos. 2 and 2 1/2 assert that there was no such evidence of an acceptance by the defendant of the articles furnished and erected under the contract, and No. 3 3/4 asserts that there was no such evidence of the failure of the wiring at the theatre to convey a sufficient current for the lights. We have already said that in our opinion there was such evidence of all of those facts. Some of the evidence was not very strong, but it was legally sufficient. Its weight was a question for the jury. His prayers Nos. 8, 9, 10 and 11 assert propositions which are in effect covered by the proposition asserted in his sixth prayer which was granted and has already been noticed by us. His prayer No. 2 3/4 asserts that there is no legally sufficient evidence that defendant derived any benefit from the installation of the plant furnished by the plaintiffs. In view of the fact that he used it to light his theatre in whole or in part for several months, the Court could not properly have granted that prayer. His prayer No. 5 proceeds upon the theory that the plant installed by the plaintiffs under their contract must have been sufficient to supply current for 1,000 lights, without making any reference to the furnishing by the defendant of sufficient steam power to operate the plant which is not mentioned or noticed in the prayer. Prayer No. 12 asserts that if the failure to supply sufficient electric current was due to the inability of the boiler to generate enough steam the plaintiffs could not recover, because there is no evidence that they informed the defendant of that fact. It is apparent from what we have said of the true nature of the plaintiffs contract neither of these two prayers should have been granted.

What we have said of the prayers disposes of the defendant's special exceptions to the granting of the plaintiffs prayers one, two, three and four for want of legally sufficient evidence to sustain them.

The record discloses seven bills of exceptions taken to the Court's rulings on the admissibility of evidence. The first of these was to the question put by the plaintiff's counsel to their expert witness Roberts, who had superintended the erection of the plant. He was asked to state of his own knowledge what was the character of the dynamo, how many lights it was expected to furnish. He replied in substance, that the factory rating of the dynamo was 1,200 lights; that so far as he knew no test of its full capacity had been made, but in the service at the theatre according to the test of the instruments on the switch board it gave approximately 1,000 lights. The question required the witness to speak of his own knowledge, and his answer was pertinent to the issue and was competent evidence. That objection was properly overruled. The next two objections were to questions put by the plaintiffs counsel on cross-examination to one of the defendant's experts who had testified that the coupling of the engine and dynamo was too short. He was asked whether the engine room was large enough to have permitted a longer coupling and replied that it was not. The objection was based upon the theory that the record showed that the engine room had been selected by the plaintiffs, and that there were other adjoining rooms that could have been added to the engine room to make it larger if the plaintiff had demanded them. Those were all facts to be considered by the jury in determining the responsibility for the short coupling if they found that to be defective construction, but the questions were within the range of legitimate cross-examination.

The remaining objections related to questions put by plaintiff's counsel in rebuttal to their expert witnesses in reference to their views and experience as to what the defendant's experts had testified were in their opinion defective or injudicious features of the method of erecting the engine and dynamo adopted by the plaintiffs. We do not find any reversible error in the admission of this evidence. The defendant had the benefit of his expert testimony upon the same subject, and the plaintiffs were entitled to have the opinion of their experts upon it also go to the jury for what it was worth.

We are of opinion upon the whole record that the case was fairly put before the jury and we will affirm the judgment appealed from.

Judgment affirmed with costs.

(Decided January 12th, 1905.)