Kernan v. Crook, Horner & Co.

Schmucker, J., delivered the opinion of the Court. 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 ²¹⁹ 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 81 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. ²²⁰ “Baltimore, Md., May io, 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 tfie 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 ²²¹ 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 22nd, 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 hot 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 ²²² 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 rooo 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