Hercules Powder Co. v. Harry T. Campbell Sons Co.

Parke, J., delivered the opinion of the Court. The Hercules Powder Company, appellant, brought suit on the common counts in assumpsit- against Harry T. Campbell Sons Company, Inc., appellee, to recover $2,143.19 for dynamite and fuse sold and delivered by it to the defendant. The defendant filed the general issue pleas and a third special plea setting up a counterclaim growing out- of damages alleged to have been sustained by the defendant in the use of the dynamite and fuse at its quarry. The court rejected the defendant’s only prayer and the first nine of the plaintiff, and granted its tenth prayer, which left the case with the jury on the single instruction that if the jury found for the plaintiff the allowance of interest was discretionary.

The verdict of the jury was in favor of the defendant for $22,-602.22, and from the judgment on this verdict the appeal is taken. The third plea presented the counterclaim by six separate counts. There was a joinder of issue on the general issue pleas, and a replication to the third plea of counterclaim. The defendant demurred to the replication and, after the demurrer had been sustained by the Circuit Court for Baltimore County, the case was removed to Howard County.

By leave of the court the defendant filed an amended sixth count in its plea of counterclaim, and the plaintiff re-filed its replication, and the defendant renewed its demurrer, which was ³⁵⁰ likewise sustained by the Circuit Court for Howard County. So the demurrer to- the plaintiff’s replication, which mounted to the first error in pleading, can be treated as the pleadings stood after the amendment of the sixth count of the third plea. The first count in the third plea was on the theory that the plaintiff had sold, and the defendant had bought, the dynamite and fuse upon the express warranty by the plaintiff to the defendant that its dynamite, when placed in holes of a size, number, and location as designated by the plaintiff, and exploded under its direction and control, would blast the rock of the defendant’s quarry between a line drawn through the bored holes in which the dynamite would be placed and the face of defendant’s quarry and would cause the rock so blasted to be thrown on the floor of the quarry, and to be broken up so that at least eighty per ceoitum thereof would be immediately ready for defendant’s stone crushers, and that the face of the quarry would be left substantially perpendicular, smooth, and even, and suitable for further quarrying operations; but that, although all conditions had been fulfilled by the defendant when the plaintiff had exploded the dynamite, the result was, without any fault of the defendant, a complete breach of such express warranty, to the great loss and damage of the defendant and its business. The second count is for a similar express warranty, but was based upon a contract to supply dynamite of a quality and quantity to be determined by the plaintiff, and to be exploded by the defendant in existing holes which it had located and had drilled.

The third, fourth and fifth counts are based upon slightly variant allegations, from which an implied warranty of like tenor to that set up in the first and second counts is stated to arise. As these three counts were withdrawn before the prayers were granted, there is no necessity to pass upon their legal sufficiency, nor to set forth their differences. The amended sixth count is, also, on the theory of a breach of an implied warranty. After-alleging that the defendant was engaged in the operation of a certain quarry and in the sale of its products, and that the-plaintiff was a manufacturer and seller of dynamite, expío ³⁵¹ sives, and blasting powder fuses, the sixth count further alleges that the plaintiff, with this knowledge, visited the quarry and proposed to the defendant that the plaintiff would determine and furnish the grade and quantity of each grade of the plaintiff’s dynamite that would be required, when placed in certain well-holes to be bored and exploded by the defendant, to blast the rock between a line drawn through said well-holes and the face of the quarry, in consideration of the defendant’s promise to pay for the dynamite of such grades and quantities at certain fixed prices, and that the defendant, having no knowledge of the use of dynamite in well-holes, and relying on the knowledge of the plaintiff, entered into a contract for the purchase of the dynamite, that impliedly warranted that dynamite of quality and quantity, as determined and furnished by the plaintiff, when placed in said well-holes and exploded in an ordinarily careful and skillful manner, was reasonably suited to blast the rock between the said line and face of the quarry.

The breach .alleged is that the plaintiff furnished too much dynamite and dynamite of too great strength was determined and furnished by the plaintiff for the aforesaid purpose, with the result that not only was the stone blasted between the line and the face of the quarry, but the stone was blasted in all directions, and in great masses, causing large crevices in the rocks that remained, destroying a large part of the face of the quarry, and affecting the marketableness of the rock and sand brought down by the blast by mixing with it quantities of red clay which was dislodged by the explosion. Under these averments it appears that the buyer made known to the seller the particular purpose for which the dynamite was required, and showed that he relied upon the seller’s skill in the manufacture of explosives which were bought, so there is an implied condition that the goods furnished should be reasonably fit for the purpose of blasting the stone. Code, art. 83, sec. 36. The fitness of the goods was their quality and capacity, and there is no allegation from which it can be deduced that the goods delivered and used were defective in any respect, or that their effect was ³⁵² attributable to any other cause than that the buyer left to the seller the duty of “determining” the grade and quantities of each grade of its dynamite required for the specific purpose, and that, in making this determination, the seller specified dynamite in quantities and strength in excess of what proved to be necessary.

There is no intimation that the seller acted negligently or wrongfully in making its estimate, so it must be assumed that its conclusion was an honest expression of expert opinion upon the facts available during an inspection of the quarry. Consequently, the result of which the pleader complains is not ascribable to the fitness of the dynamite sold for the purpose in view, but to an error in judgment or opinion, which the buyer must have known was a possibility implicit in the seller’s offer and so to be a chance taken by the buyer in accepting the offer, since the seller’s determination was necessarily dependent upon the exercise of its judgment and opinion when applied to a problem whose factors could not all be known. The contention of the defendant would enlarge the obligation of an implied warranty of fitness for a particular use, to an assurer of a result which is not imputable to the quality and capacity of the goods sold, but to an error of opinion, which must be taken, under the pleadings, to have been carefully and honestly formed. An express contract would have to be set forth to bind the seller as an assurer, and this the amended sixth count did not do.

As the count is bad on this ground, no others need be considered. The first and second counts of the defendant’s third pleat are on a contract, with an express warranty, and severally set up a good cause of action, without being bad for duplicity. Rittenhouse, Winterson Auto Co. v. Kessner, 129 Md. 102, 104-106 . Neither count combines several distinct matters in support of a single demand. 1 Poe, Pl. & Pr., secs. 734, 737.

The plaintiff filed its replication to the several counts of the defendant’s plea of counter claim which admits the sale and delivery of certain explosives, and then denies in general terms that the plaintiff had agreed to perform any work or services in connection with the sale or had made any ex ³⁵³ press or implied warranty whatsoever, but avers that the blasting was done pursuant to a written agreement, which is embodied in the replication and which is here inserted because of its importance: “Hercules Powder Company, “Wilmington, Delaware. “Dated 12/22, 1925. “Whereas, The undersigned customer has requested certain assistance of the Hercules Powder Company in connection with the performance of certain blasting operations; and, “Whereas, The Hercules Company is not engaged in blasting work, its business in explosives being confined solely to the manufacture and sale thereof, but to assist said customer the said Hercules Company has agreed to permit said customer the temporary use, free of charge, of the services of said company’s employees, together with certain needed equipment, on the express condition that, while engaged in blasting work for the customer, such employees or agents and equipment shall, to all intents and purposes, be the employees and equipment of the undersigned. “Now, therefore, the undersigned hereby expressly agrees that the employees and equipment of the Hercules Company while engaged or used in said blasting work, are and shall be, to all intents and purposes, the employees and equipment of the undersigned, under his supervision and control and that all services so performed shall he at the sole risk and responsibility of said customer, and, for any damage or loss resulting from such service the Hercules Company shall be held harmless; and further that said Hercules Company does not assume any responsibility for the result of the services of such employees or equipment for which it makes no charge. “Harry T. Campbell Sons Co., “Bruce S. Campbell, “Customer.” ³⁵⁴ A demurrer was rightly sustained to- this replication. Passing the point that it was a general replication to six different pleas, it amounted to no- more than the general issue. The contract set out in the third plea was not a simple sale of goods, but a contract with a warranty, either express or implied. In the form of this replication, the pleader to give color must admit all, not a part, of the contract alleged.

Here the replication sets up a denial of the contract averred by the defendant, and presents its own theory of the transaction, which is an argumentative denial of the -contract. 1 Poe, Pl. & Pr., secs. 637-641; Seff v. Brotman, 108 Md. 278, 284 ; Jenkins v. National Bank, 134 Md. 85, 89 ; Citizens’ Mut. Fire Ins. Co. v. Conowingo Bridge Co., 113 Md. 430, 438 . Before December, 1925, the defendant had operated its quarries by what is known as the “bench method” of blasting, but towards the close of that year its attention was drawn by the Gfill Rock Drill Company to- a, modern, but common, method called “well-drilling.” It is unnecessary to describe tbe two methods, except to say that the method advocated by the drill company was a much more extensive operation than the “bench” method, as it involved the sinking of larger holes to deeper depth, the using of a greater amount of explosives for every blast, and brought down a higher percentage of rock.

The advantages were a reduction in drilling for the blasts, in the number of the- blasts, -and the increase in the result of the blasting operations. It would seem that the custom-ary “well” was a hole with a diameter of six inches, but Fred A. Gill, the representative of the drill company, who was an -expert in the art, advocated one of eight inches. Gill had been soliciting a contract to drill holes for the defendant, but the defendant was not persuaded by his efforts. A sales agent o-f the plaintiff, Stabler, had been calling upon the defendant for some ye-ars to sell him “Hercules” powder, but the defendant had not given him an order. .This agent and Gill informed the defendant that a blast was to be exploded at Longnecker’s quarry, where the eight inch well holes, loaded with “Hercules” powder, would be used, -and sug ³⁵⁵ gested that its representatives witness the blast.

At defendant’s request, it was informed of the day and, on October 8th, '1925, the president of the defendant, and its superintendent, wont to the quarry and saw the shot. On this occasion, the president and superintendent met Hardesty, a salesman and demonstrator of the plaintiff, and another representative named Peters. Hardesty had made the. shot for Longnecker, which was successful, and threw the rock between a line drawn through the well-holes and the face of the quarry, breaking the stone so that about balf of it needed no secondary blasting and leaving a new face to tbe quarry in tbe plane of the wollholes. After witnessing the blast and observing these results, the defendant’s president testified that he requested Hardesty and Peters to come down and look at defendant’s quarry, and to tell him if they thought defendant’s rock would break in the same manner or better.

Peters could not come, but Hardesty promised that he would. On the 14th of October, Hardesty and Stabler visited the defendant’s quarry, and on that occasion the warranties upon which the defendant relies are alleged to have been made. The testimony on the part of the plaintiff contradicts that of the defendant on this issue of fact, and, if believed, amounts to no more than an expression of opinion. However, the plaintiff’s witnesses will be ignored, and tbe testimony on the part of the defendant will he stated.

According to the president of the defendant, after he, Hardesty, Stahler, and Gill, who was present, had looked at the quarry face, Hardesty said: “Why, yes, that’s more solid in the hill, it will break np better than the Longnecker’s did. The Longneclcer’s was looser in the hill and would come out in bigger chunks, but this was so solid in the hill, with the well holes and the right amount of powder it would come out even better, and as he told me, over 80 per cent, of it. I made the remark that I thought fifty per cent, of Longnecker’s. would come over— mine would come out better than that, more than eighty per cent, would go through the crasher if the shot was made.” And, further, Hardesty “told me the holes would split right in the center. Mr. Russell of the du Pont Company and Mr. ³⁵⁶ McKenzie both told me the same thing, that the shot would split the quarry right down and there wouldn’t be any back break at all, just cut that down and be able to see, as Mr. Hardesty said, to be able to see the holes the same was as at the Longnecker, see the mark of each hole.” And, finally, “Mr. Hardesty told me it would throw it out flat with the floor by putting the holes five or six feet below the quarry floor, and wouldn’t leave any toe at all.

As he put it, the button would go out and the top would drop in and be able to see the holes the same as we saw them at Longnecker’s, the back of the holes the same as we saw there, split straight down.” These three statements of Hardesty are what the defendant relies upon as constituting an express warranty. They were not so sought and obtained. The defendant, after seeing the blasting and its result at the Longnecker quarry, was doubtful if a similar method of blasting would be equally as effective in its own quarry, owing to a difference in the rock and local conditions. What he desired was the opinion of Hardesty in respect to the suitableness of the method of well-hole blasting under the conditions at the defendant’s quarry.

This is the way defendant’s president put it: “I told Mr. Hardesty I wanted him to come down there and look at it and requested Mr. Peters if he would come too — he was a good deal older man — and if they thought they could break my rock like they did that, or better than that, but if they didn’t think that rock would break that way, I didn’t want to go into it all all.” So, the visit to the defendant’s quarry by Hardesty was to get his judgment on the subject of blasting by the well-hole method, and not to secure any warranty as to the fitness or capacity of plaintiff’s dynamite. The three quoted statements of Hardesty represent his opinion on that question and none other. The defendant has definitely characterized these declarations of Hardesty to be his desired opinion. At the same time that he gave his judgment that the defendant’s quarry would show better results from the well-hole method than were shown at the Longnecker’s quarry, Hardesty indicated where, and stated the depth to which, each hole should ³⁵⁷ be drilled.

As a result of this opinion so obtained, the defendant gave the drill company a contract for the drilling of the seven holes, but did not enter into a contract with the plaintiff for the powder. While it is not easy to draw the line accurately between the statement of an opinion on the one hand and an affirmation of fact on the other, and resort to precedents is unsatisfactory because of their conflict and confusion, the facts on this record make clear that the defendant sought and obtained an expression of opinion, not about the goods of the seller, but about introducing a new method of operation of its quarry. The failure of the defendant to give Hardesty or his company an order for the explosives to be used when the wells were dug was not due to any question of the quality of its explosives, but because the defendant intended “to get the Trojan man and the du Pont man there to see what they thought about it.” Tts president testified he said to Hardesty: “I told him I wouldn’t give him an order because I thought may be Trojan or du Pont would be cheaper and I wanted to get their figures.” Hardesty left and was not again at the quarry and did not see any representative of the defendant until December 22nd, the day of the blast at the quarry. The first well-hole was completed on December 5th and the last on December 16th.

The seven were about twenty-eight feet apart, about thirty-two feet from the face of the quarry, and from sixty-seven to seventy-three feet deep. When the representatives of the other two powder companies came, they differed somewhat from Hardesty and from each other in the distance which should be spaced between the holes and from the face of the quarry, and one preferred six-inch well-holes. On account of the better breakage given by Hardesty, the defendant concluded it would be cheaper to buy of the Hercules Powder Company; and the well-holes drilled were as they had been indicated by Hardesty. When Hardesty returned to his office at Allentown, he wrote the defendant on October 16th, giving the corrected prices of the three grades of powder which he first consid ³⁵⁸ ered best for the blasting, and had mentioned to the defendant on his visit to the qnarry.

In his letter of October 24th to Stahler, Hardesty estimated the quantity of every one of the three grades then specified for the blast; expressed the opinion that “the entire blast should bring down about 35,000 tons of material, which is a little better than four tons per one pound of powder”; and that the defendant “will not attempt to shoot it with any weaker powder than I have recommended.” He wrote: “I feel satisfied if any weaker powder is used than seventy-five per cent, in the bottom the stone will not be broken nearly as fine as customer expects it”; and, also, “You might advise Mr. Campbell that it is necessary for him to purchase 8,000 lbs. of the strengths specified above.” When Stahler forwarded this letter to defendant on October 26th, in order, as he stated, that the defendant would have explained to him the necessity for using the quantity of .dynamite which Hardesty had estimated, Stahler added: “You will notice that Mr. Hardesty is of the same opinion as myself, viz., that weaker powder will not do the work.” After this letter, nothing appears to have been done until December 9th, 1925, when defendant gave an order through Stahler for the powder, stating: “These amounts are taken from the letter that you received from Mr. Hardesty and forwarded to us. If these amounts are not correct, let us know at once.” Aside from the direction to ship the powder and the expression of the hope that Stahler would be present on the day of the blast, the letter contained this paragraph: “It is our understanding that you are to have Mr. Hardesty here to make this shot as soon after the holes are drilled as possible.” When the order was received it was for 3,000 pounds of seventy-five per cent, gelatin; 2,000 pounds of sixty per cent, gelatin, and 3,000 pounds of forty per cent. Extra L. E., but Hardesty telephoned the defendant that he was making it all of