Conner v. Mount Vernon Co.

(Goldsborough, J., delivered the opinion of this Court: This suit was brought on a contract to construct two Centripetal Momentum Water-wheels and properly connect them with the machinery of a Cotton Mill. These wheels were to take the place of an over-shot wheel then used in driving the mill, and in the language of the contract, wore “guaranteed to work from twenty to one hundred and ten horse-power with a full head of water, and to effect a saving of twenty per cent, or one-fifth of the water of the over-shot that was in.” Another clause of the contract shows that the contracting parties contemplated the construction of wheels that ⁷⁰ should bo sufficient to run and drive the machinery of the mill. After the admission of proof on the part of the appellants that the wheels were put in place and connected with the machinery to be driven, and that their power reached the ■maxwi'um called for by the contract, evidence was admitted on the other side, without objection, showing that the displaced over-shot wdieel was of eighty-five and seven-tenths horse-power with a full head of water, and sufficient to drive all the machinery of the mill; and further, that the new wheels, with a like head of wrater, were wholly insufficient for that purpose. The written computation of the power of the over-shot wheel, made by Conner one of the appellants, ■and to the admission of which, the first exception was taken, was then allowed by the Court to be read in evidence.

The paper appears to be appended to, or to be part of a paper endorsed “ Proposals,” which the appellants insist was merged in the contract subsequently made, and for that reason was not admissible as evidence in an action on the contract. The appellants assume, as the ground of their objection, that this paper tended to vary the contract for the construction of the new wheels, and it must be conceded that if it was offered for that purpose, the objection would