ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is an action at law brought in the Circuit Court of the United States for the Southern District of Ohio, by the American Pressed Tan Bark Company, a New Jersey corporation, against Theodore J. McGowan and Robert C. Bliss, partners under the firm name of "The McGowan Pump Company," doing business at Cincinnati, Ohio, to recover damages for the alleged breach by the defendants of a contract for the construction and erection of machinery upon a steamboat. The petition by which the action was commenced sets forth a contract entered into on the 23d of June, 1881. After a trial before a jury, which occupied thirty days, there was a verdict for the plaintiff for $18,000, and a judgment accordingly, to review which the defendants have brought a writ of error.
The petition alleges that the plaintiff, being the owner of patents for the manufacture and sale of pressed tan bark, entered into a contract with one Mack, of Cincinnati, for the construction of a steamboat which was to receive, carry and operate machinery to be erected on it by the defendants under the contract sued upon, and was to be constructed, by agreement with the defendants, under their control and supervision, and to their acceptance; and that the boat was so constructed by Mack and was accepted by the defendants. The contract
between the plaintiff and Mack for the construction of the boat was in writing, and was made on the 17th of June, 1881. It contained the particulars as to the size and material and mode of construction of the boat, and stated that its construction and acceptance, on the part of the plaintiff, was left with "Theo. J. McGowan & Bliss," and that it was to be finished and delivered, afloat, to the plaintiff, on or before August 26, 1881. The petition alleges that this contract with Mack was made with full knowledge on the part of the defendants of the purpose for which the boat was being constructed, and with their direction, counsel and advice.
The written papers constituting the contract between the plaintiff and the defendants were as follows: On the 23d of April, 1881, the defendants, using the signature "Theo. J. McGowan & Bliss," wrote from Cincinnati to A.G. Darwin, the president of the plaintiff, the following letter:
"CIN'TI, O., April 23, 1881.
"DEAR SIR: We herewith submit plan for bark press, two views, one plan and the other elevation. They were gotten up in great haste and are not as full as they should be, but they show what our ideas are. The operation is 2 12 hyd. presses, E E, one on each side of 20" hyd. press D, to remove the bark from containing cyl. G, alternately, after being pressed in 20" hyd. press D. They pass from the hyd. press E to hyd. press D, by a track, and are filled at top end from floor above, and the bale is also delivered from top end of containing cyl. on to the floor from which cylinders are filled. F is a chamber 40" in diameter and 12 feet high, and is supplied with water and air by steam pump A, which keeps up a pressure in F to 300 lbs.., to operate the hyd. presses rapid at beginning of the operation, and, when the hyd. pumps B and C have raised the pressure in hyd. press beyond 300 lbs., the check valves close, and shut off connection between hyd. presses and pressure chamber. Then the hyd. pumps B and C complete the pressure until bale is pressed in 20" press and bale removed from containing cyl. The hyd. pump C is used exclusively for
" hyd. press, and hyd. pump B is used for the two 12" presses E E. The . pumps are independent of each other, and each has its own steam cyl. The steam pumps use the water over again from tank from which it has been delivered from hyd. presses. The operation is about as follows: The containing cyl. is filled from upper floor, is run under 20" press and pressed up to desired pressure; it is then run on track to 12" press, where it is forced from containing cyl., which is again filled and operation repeated, and, while cyl. is being emptied the other is going through 20" press, and so on; work is done very rapidly and well. 20" press can be used up to 1500 tons pressure.
"Trusting this hurried explanation is satisfactory and that we may have your favors,
"THEO. J. McGOWAN & BLISS.
"P.S. -- Time required for each pressing and delivery of bale 2 1/2 minutes. We guarantee the whole."
On the 20th of May, 1881, the following letter, signed "The McGowan Pump Co.," was written to Darwin:
"CINCINNATI, O., May 20, 1881.
"Yours 18th to hand, and contents noted. By enlarging press, as per your suggestion (which we think very good), we are of opinion that we have large surplus power in presses, and almost agree with you in your ideas as to amount, but we are inexperienced with the nature of tan bark to press into a cylinder and remove therefrom, and have been governed entirely by the calculations given us by Mr. Hill, and we think there will have to be some little experimenting before you can accomplish just what you want. We do not know how much compression there will be to make bale and weight required, nor how bulky the bark will be, when loose, to make bale of required size. We do know the motions can be made in 2 1/2 minutes and the pressure 1500 tons given, but what kind of
bale it will be we do not know. We are constructing this machinery to make these bales 14" X 16", and not much clearance. We think it would be advisable to have more clearance made, by extending columns further out, to permit a large bale being made, by enlarging cylinder, as you suggest. This would necessarily make the press cost more money. The bars would have to be extended further out and the castings made heavier to resist pressure. If you come to the conclusion to have enlargement made, notify us at the earliest moment possible. We have now got scale drawings about complete, and, when the boat is procured, or other selection made for erection, we will have to add to our plan the supports for the support of presses to foundations. It will materially change our plans if changed from boat to land, as presses are very long, and on a shallow boat would throw them above main deck. Will be glad to see you.
On the 23d of June, 1881, the following written contract was executed:
"CINCINNATI, O., June 23, 1881.
"The Am'r. Pressed Tan Bark Co., of 240 Broadway, N.Y.
"GENTLEMEN: We hereby propose to furnish you the following machinery:
"1. 14" X 24" engine and all necessary trimmings for grinding bark.
"2. 14" X 28" engine and all necessary trimmings for propelling boat.
"3. 3 boilers, 42" X 26", and all necessary trimmings for propelling boat.
"3 bark mills and all necessary trimmings and gearing.
"1 bark elevator; 2 elevators with platforms, for raising and lowering pressed bark to and from hold of boats, to be provided with safety catches and unwinding device; 3 heaters -- 1 for bark engines, 1 for boat engines, and 1 for steam-pumps; 1 steam-pump for boiler feed; 1 deck hand-pump; 250 feet of rubber hose, couplings, and 3 nozzles; 2 hoppers and scales to
weigh bark; all the necessary shafting, hangers, pulleys, beltings, and all steam and escape pipes; also one 20" hyd. press and two 12" hyd. presses, with their necessary fixtures and connections, together with the necessary hyd. steam-pumps, tank, &c., for pressing bark into bales; all to be done in a workmanlike manner and of first-class material, and set up aboard your boat in Cincinnati, Ohio, for the sum of twenty-three thousand seven hundred ($23,700.00) dollars; the above machinery to have a sufficient capacity to do the required work, and guaranteed to pass government inspection.
"To be completed in 60 days.
On the 30th of June, 1881, the following letter was written by Darwin to "The McGowan Pump Co.:"
"NEW YORK, June 30, 1881.
"To the McGowan Pump Co., Cin'ti, Ohio.
"Mr. S. H. Beach hands us contract for presses, engines, boilers, &c., &c., entirely satisfactory, as we understand -- that is, that the capacity of the presses, &c., are in keeping with guarantee expressed in your letter of April 23, 1881, which we consider a part of your contract, in so far as guarantee of the presses are concerned. Please give us formal acknowledgment of same.
On the 5th of July, 1881, the following letter was written by "The McGowan Pump Co." to Darwin:
"CINCINNATI, OHIO, July 5, 1881.
"DEAR SIR: Your favor of June 30th to hand and noted. Our contract is in accord with ours of April 23. Of course
we do not know nor could we guarantee anything in reference to whether the bark will bale or not, or weight or size of bale. That we consider an ...