J'EDERALREPORTER,'
vol. 41. '
tioD-, then, arises, by what safe and;reliabledata, to avoid 'conjecture, is the court, under the evidence before it" to arrive at· the dirilinution of this ditch? As this this annual rental consequent upon estimation is to be based solely upon .the in(',onvenieI'lce of getting the goods and produce from a wagon into the warehouse or store-room, I think 15 percent, on the rental value would be a liberal allowance; on the evidence before the court; which up to thetiII,le of the institution of suit would amount to $75, f(i)r:which sum judgment will go for plaintiff.
ELLITHORPE' Am-BRAKE j;, I I', c
eo: tI. SIRE. '
(Circuit OO'UTt, B.D. New Yor1c.Haroh :6, 1890.) , . ,
L .CoNTUO'1's-RlIJi'USAL TO ALLOW :P:Ulll'OBM6.NOBo' Defendant made no Objectlonsto platls for elevator cars contracted for{when ," submitted, to him, and stood by untiloll'e had been put in; when he bedame dissatisfied with its carrying capacitr, and to l1ave a different car used in the second elevatorJ whicb wall thiln; With tb,e exception of l'utting the car in/lace, nearly completea,but refused to ,give & written order for the'change, an prevented plaintiff's men ,from puttingr ,in the origiqaJ car. , Plaintiff had had di:Ol.olllty in getting the payments desired $8 the wOl'k progressed, and refused to make a change without a writing. Held, that· defel'ldant had accepted the plans, and was guilty of a breach of contract hi refusing tQ.al111w to put the seconq carin. ,,'BAMII.,..D.u.UGES FOR BREA.CII. "P16intitr, having proviaed IDBohinel'Y' for an elevator. and delivered it on defend· alld having1)eeIi wrongfully prevented by defendant from completing'the ,contract, can recover the, full value of his labol' lI-nd materials, though de. /'fendantBfterwaros :fI.nishea'the elevator, not using the detached portion of plain· ., tiff's materials. : " '
, . : , ,', ,,' , '. " . , Damages 'for refusal to accept' elevators ordered, where they remain aUhe faotory, and no losiof pro:fl.ts is proved, iJl the COllt of storage and insurance.'
:.t Law. -<}.i
j :) .
ActioD, for breach of contract. SCl'1!1Juel Ashton, for plaintiff. 4lberll. Sire andCha1Jlncey, Shaffer, for defendant.
, .SHiPMAN, J. This is an action at law, which was tried by th court; ' a.tl'U!;lby jury having by written stipulation signed by the Upon said trial, the following facts were found to have been proyed, and to be true: The t>laintiff is, and was at the .commencement ofthh!,suit, a corporation duly incorporated under and by virtue of the ]lj.ws<ofthe state of Illinois, and located in and an inhabitant of Chicago, iD,'$llid state; where it has and continuously has had its principal place of;.business. The defendant. is, and was at the commencement of this suit, a citi:l;enof the state of:New. York, and a residerit and an inhabitant ofNew York city, inthesonthern district of said state. The ,plaintiff' i8,'80 m,anufacturer of elevators.Onor:about October 1, 1888, the plaintiff: and defendant, entered: into a written contract whereby the plaintiff agreed to, fumish·,.nd erect ,for the defendant,in a·good, substantial, and workman·like manner, two hydraulic passenger elevators in his double
apartInent or fllit buildiIigSOn: Fifty-Nirith street, and known as the" East and West Flats;" and two safety steam passenger in thendjoining residence building on Fifty-Ni 11 th street, and 6ne in t,he office building corner of Center and Reade streets,-aUin theoityof New York; making in all four elevators, with the appur'te'nanCies:and appliances as specified and agreed upon,rendy fOfuse iu80 -to.90days fro111 date of receipt of approved plans, for the sum of $6,750; <me-:.half thereoitobe due and payable When the machines werein buildings, and the other half thereof to be paid when the said elevators were up, and in completerurming order; pliyments to be made upon the written order of the plaintiff, provided the defendant should be' satisfied -with the amount,as th,e work progressed. ' The plaintiff, in its C0111plaint, avers that it cornplied with the terms and conditions on its patt to be performed, and erected, and completM in running order, the eleva-tor in _the West flat" and: '\Tery nearly completed the erection of the :elevatodn: the East flat, when the prosecution of the work was stopped and prohibited by the, defendant; that the steam, elevators were ready for shipment, but the defendant requested that they should not be ,shipped 'from Chicago, .but should' Temain there' in store u,btH he should :deeide upon some proposed changes, all of ,,'hich· was,;dofiejand that theYTemained to his order; that he bas never ordered -the same to be shipped/although the plaintiff has been ready, to do so, andtoco111ply witb'thecontraot. The complainant also alleged that it hadfluffered special damage ,by reason of obstructions and hindrances: by- the -defendant' to 'the rapidprosecntion work, andhadincurtedextra expense-for insurance and storage'oftM property. The sum oU1,900 ;Was paid by the defendant 'upon the contract. The; defendant alleges in his answer -tha(too'plaintift' wholly neglected and failed to perform its <lontract, and 'also sets up a counter-claim. for damages a.rising from such neglect> Theflnding of factS' in this case is made diffioult'bythe complete an-tagOriiStll of the witnesses for the respective parties to each other in regardto almost evel'yimportant fact in the This diversity com'menooswith the term.s of the written contract; the respective copies 'which ,are produced by the 'parties being unlike. Quite an important -pll.rt of the terID!! of payment contained in 'the printed proposals of the t plMntiffis erased in the defendant's copy, and upon the questionwheth-er tbisel'8sure was mflde lSy! 'Consent or wrongfully the parties are at -variance.'- lam convinoed of the honesty of 'each 'of the- witnesses GodwIn and Ellithorpe, whose testimony upon this point is not recThe weight of the testimony leads-to the conclusion that the -contract; which has been heretofore stated, and which is known in the case ItS "-Exhibit D,"wa.s the one which was made. Exhibit Cwas made in the manner and at the time stated by Ai'B. Ellithorpe. :On'October 28, 1888, A: B. Ellithorpe, the 'plaintiff's general manager, Cll.meto New Yorkwith FraIlkRoche, his forenlan, and on the next day, ,saw the defendant, andf'the difterlmt buildings 'in which the elevators :were ':tb'be placed.R6dhe' did until Debember -20tb,wheri he hagaR in the on Fifty-Nirtth'street.
case.
·664
1'EDERAL .REPORTER,
vol. 41.
puringa portion, at least, of,his time, he was at work in the erection of elevators for other people. '.l'herenson which is given by the plaintiff for this delay is that the Fifty-Njnth street cellars and the hatchways were not ready for the elevators, and that it was practically impossible to commence sooner. There,nlay hf.we been some ground for this assertion on the very first few daYE! of November, but the extent and the duration ,of this alleged causejare very much exaggerated. The important· reason was that the maQhipery was not completed in Chicago. This conclusion is based upon'the correspondence. On November 28, 1888, the plaintiff' wrote th,e as follows: "We to-day send you designot cars, tor your passellger elevator for your approval;ll;11 cars to be of the same design. Please approve and return same, so that they play bp put under way. T.he hydraulic engines are under way, '. " ' and WillSOOD be ready to 30th the dafendant wrote the plaintiff requesting an inOn tervieyv in regard to the Center and. Reade street elevator, to which the plaintiff; replied, on December 3d; "Your elevators are being pushed with sJIpossible dispatchi" and, in,regard to the Center-Street elevator, that the defendant1s,decision in regard to his option as to ofma.phine which would fl\ke. At the date of this letter the machines were, manifestly, not ,ready in Chicago. The machinery for the hydraulic elevators reaclled New, York abont December 22, 1888. While thisclelay existed,. and its Qhief cause is to be attributed to the plaintiff, the defendant ,was not particularly burdened or annoyed by it. He was not-at that time, apparently, anxious for the speedy completion of his houses. The plaintiff prosecuted its work in the apartment houses with some b;reaks, occasioned, t9. a very limited extent, by the fact that its workmf:ln at times hindered by the use of the stairways by the defendant's worNmen.. On January 24, 1$89" it drew upon the defendant for 81,500, which ,draft was returned protE¥ltedj alld then it stopped work on of this non-payment. On January 31st the defendant complained by letter,of this cessation, which he said was not in accordance with the contract. The plaintiff replied on February 2d, claiming compliance, and 8th the qefendant agreed in writing to pay $1,.500 on "as per contract," immediately afte,r the elevator in the West flat was. funp.ing. Work was then resumed, and the elevator in the West flat was comp}eted;Marcb 6th, and the 81,500 were paid in accordance with;the agreement of 8th.. At. thill·time the work 1.1pon the elevator in the .East tint was nearly done. The only remaining work was to, place the (lar inpositipn, ,p.d to connect with it the cables, .sheaves, andfitqngs. The, car and ;these articles were in the cellar, ready "tq,be put up.: Tw,O'Wieeks' work would have completed.the elevator. The desigll for all, the cars was sent to the defendant for his approval ,by,Jetter ofNc)Vember!a8th. which ,has been heretofore quoted. The contract specified that the design was to be submitted for approval. The other plans had ,bjilel) approved . The defendant did not reply by letter, but in January the general manager of the plaintiff saw him in New York. .on the subject. He did .not diSSent to the design,and cars for the
ELLITHORPE AIR-BRAKE CO. ft. SmE.
665
ment house elevators were thereupon built accordingly. The design or plan for the cars was shown by Mr. Roche to Mr. Godwin, the architect, who disliked it, and objected to it on account of its small size. The well-hole or hatchway was a small one, and he wanted as much room as possible in the car. The design was for a "side-post" car, and was as large as the well-hole permitted, but in a side-post car there are, necessarily, inside projections, which diminish the inside size or capacity of the car for carrying passengers. When the dimensions are necessarily small, a "corner-post" car furnishes considerably more inside space. The architect objected to this kind of car, but no one declined to accept the design, and no one demanded or required of the plaintiff a comerpost car. The defendant communicated nothing definite and positive, -by his acts assented to the design, and permitted the side-post car to be put up in the West flat without objection. When that elevator was completed, and he saw the car in running order, he was disappointed at its carrying capacity; but he accepted the elevator. On March 7th, he told Mr. Ellithorpe that he wanted a corner-post car for the East flat, who replied that he would put one in, if he had a written order to that effect. His idea was that he was to have an extra price for the change, inasmuch at3 a new car would be required. Mr. Sire replied that he would not give a written order; that they were honest people. Ellithorpe had been annoyed and troubled at Sire's refusal to pay more money as the work progressed, distrusted him,refused to change without a written order, and also wanted an additional payment for the work done upon the East flat, which Sire refused to give. As to what subsequently happened,-and this is the part of the case in regard to which I am in most doubt,-the parties are at a total disagreement. The plaintiff's theory is that Sire prevented its workmen frOlD prosecuting the work, and drove them out of the building. The defendant's theory is that the plaintiff voluntarily stopped and abandoned the work, because it could get no money, and that prior to its abandonment, viz., on March 7th, he told the plaintiff to go on with the work. It is true that the plaintitfwanted a payment, but it had completed one elevator, and could complete another in a short time. That part of the job was almost at an end. On the other hand, Sire wanted a corner-post car in the East flat, and gave orders not to allow a side-post car to be placed; and when the plaintiff's men went there, and entered upon the work, preliminary to putting up such a car, they were stopped, and told not to put it up. They were not prevented from any kind of work. They were prevented from putting up a side-post car. The turning-point in this part of the case is the dissatisfaction of Sire with the carrying capacity of the car, his determination to have a corner-post car, and to get it without having bound himself to pay a new price for it. By the contract, the defendant was to have the option, at any time within 30 days, of substituting a screw-worm belt elevator in place of the direct steam elevator in the Center-Street building, at a reduced price. He did not make the substitution. About December 9th, he made a bargain to sell the building, and he wanted to· be released from the Center-Street part of the contract.
666'
I:Ie'had. to1d·;tbe plaintiff thlltihew118 thinking of sellhlg thehuildiug. if it ,was sold, asked the cost 'of-cancellation. He, was subsequently told' thatdt would be $200. He then told the plaintiff not to shipthfr maohineryforthat elevatori and he would either provhle anoth£:r buildAbout ing for it, ,or make a bargain to;hav:ethe plaintiff the same time, the defendant also had in contemplation a. change in the private house in Fifty-Ninth street. fr01'D:& steam to n. hydraulic elevator, inquired of the plaintiff the cost oil such a change, and, instructed it to retain, and not to ship, the. steam .elevator., The machinery for these elevators was consequently held,by the plaintiff, in, its ,warehouse, awaiting orders from the defendant, whieh :Were never given" alt40ugh his attention was called to the impOl'tance: pf: a decision" by letters of February 2d and Marchi 11th. The market,value of the finished work of each machine unset Was $650 to $700. A fair price for the storage ,and insurltnce is $25 per machine. ,v.alueof the work ,done by the plaintiff value of the elevator in the West in the privat&';residence was flat was $2,200. The outlay for and value of the wOl1k ,and labor, and set machinery, and. the unset: cair and machinery, in the East Flat, was $2,050. ,The defendant afterwards ,provided anotbercar, and finished using thaplaintiff's mate;. the East flat elevator at his own rials therefor, which. are still in the' :building. It was not finished on Maylst. On March 11th thepJaintiffwrote the defendant, claiming a and obstructions in consequence of his loss on account of cbmpliance with the contractj that .tw.o steam machines had been and wereh.eld,instore by his instruetio11Sj claimjng that half the contra1:lt price .was due by, ;the terms of the contract; asking .lor its payment, and for a. meeting in which they roightdetermine all the questions which were involved. The and attorney replied on March 14th, llsser.ting a readiness to .fulfill tbe contract,.....,.a desire that the plaintift'.should fulfill witbout delayj tbat there was nothing to.determine liponexceptfortrheplaintiff to execute the contractj and denying that he then owed any suU} whatever.'. There was, manifestly, much t{) determine in regard; to the iJ Neither party complied with the,contraot. The plaintiff did not complete.the elevators in the apartment bouse within the specified time. a':histnon-complianoe was fully waived by the defendant. The defendamt had in factaocepted plans for the cars. He did not decline to acthem when they were submitted, and he permitted the car to! be 1>utinto the elev,ator; the work passing almost daily under his observation. He couldIiot thereafter.requi:re a corner-post car in the East fiat without compensation, and could not compel the plaintiff.to stop,work unless it provided.sucb,new.car. The. refusal of the·defimd:. 8<nt to. permit the completion of the East fiat elevator. by the erection of side-post car was a breach of the ;contract, and there was no willfulaban.. donment of the work on tbepart·ofthe plaintiff. The oefendant lost rent upon some of the apartments in the East flat because the elevator was not .running on the 1st of May, but such loss is attributable to his own conduct; and upon the counter.,.claim no loss or damage is proved
BORGMAN 11. OMAHA &: ST. L. BY; CO.
667
for which the plaintiff is liable. The plaintiff was at all times ready and willing to perform its part of the contract, except in the matter of time; which breach was waived by the :defendant.. The plaintiff having in good faith built and completed the West flat elevator, though not within the time prescribed by the contract, and the defendant having accepted the work, the plaintiff can recover the value of the elevator. Inasmuch as the plaintiff had fully provided machinery, car, and appliances for the East flat elevator; had delivered them all to the defendant upon his premises in pursuance of the c011tract, where they still remain; had set the machinery, and nearly completed the work and labor upon the elevator, and was without its fault prevented by the defencIant from completing the performance of the contract,-it is entitled to recover its loss, which consists, in this case, of its outlay, and is the sum 0£$2,050. It is also entitled to recover damages from the defendant's virtual refusal to have the contract in regard to the steam elevators carried out. As the machinery is still on hand, and no loss of profits is proved, the damages are merely the proper cost of the storage, and the expenses. of insurance, viz., $50. The plaintiff is also entitled to recover 360; the same being thevalue of the work and material placed upon the private residence.. The sUm oU1, 900 having been paid by the defendant, the balance which was due is $2,485; fur which sum, with legal interest from March 14, 1889, as a part of the damages, let judgment be entered for the plaintiff.
BORGMAN 11. OMAHA.
&
ST.
L. Ry. Co.
(Cf,rcwf,t Court, 8. D.lowa. February 25,1890.) KuTER AND BERVANT-NEGLlGENCE OF VICE-PRINCIPAL,
The foreman of railroad repair-shops, to whom is intrusted the task ot restoring wrecked trains, with the aSSIstance of 8 crew of men selected from tbeworkmen in the shops and the seCtionhands, and who has of all the men engaged in restoring the trainl is, when in charg-e of a wreck. 8 VIce-principal, for whose negligence the railroaa compauy·isliable to 8 workman injured while under his ordera.
At LaW. On motion for new trial. Before BREWER and SHIRAS, JJ. BREWER, J. In this case is presented a motion for a new trial. The principal question arises on these facts:· Plaintiff was a section hand, working on the railroad, then in charge of a receiver, whose responsibility is now assumed by the defendant, A train had been derailed, by which the engine and tender wholly left the track. In attempting to get the tender back on the track, the plaintiff was injured, and the claim was tha.t the injury was through the negligence of one O. E. Smothers, in charge of the work, and known as the "wreck-maater" of the road. The trial judge ruled that, whether Smothers was guilty of negligence or no,