Louis Eckels & Sons Ice Manufacturing Co. v. Cornell Economizer Co.

Pearce, J., delivered the opinion of the Court. This is the defendants appeal from a judgment obtained by the appellee in the Superior Court of Baltimore City. The defendant is a corporation under the laws of Maryland, owning and operating a plant in the City of Baltimore for the manufacture of ice, and the plaintiff is a corporation of the City of Philadelphia, and the owner of a patented device called “Cornell Patent Economizer and Smoke Consumer.” The declaration contains the common money counts, and two special counts; one upon a promissory note dated March 17th, 1910, for $820 made by the defendant, and payable to the order of the plaintiff on August 17th, 1910; and the other upon another promissory note of the same date for $832 made by the defendant, and payable to the order of the plaintiff on November' 17th, 1910. The pleas were “never indebted as alleged,” and “never promised as alleged,” upon which, issue was joined.

These two notes represented the contract price, with interest added, of two Cornell Patent Economizers and Smoke Consumers with which the plaintiff had equipped two of the boilers of the defendant’s ice plant, of one hundred rated horse power each, under the terms of a written contract between the parties, made Aug. 23rd, 1909. ¹¹⁰ At the trial, the plaintiff relied on the promissory notes, and the defendant set np a total failure of consideration. The contract contained the following four guarantees on the part of the plaintiff: “A. To fulfill all conditions imposed by local laws and ordinances, governing the use of apparatus and processes for the prevention of smoke, that may be in force within the territory in which this installation is made. B. To éffect a saving of not less than 15 per cent., or a proportional increase, in boiler capacity, when said boilers are run to their full rated capacity, and in accordance with our instructions; it being understood that any saving effected by the use of cheaper grade of fuel is to be accounted as part of same; otherwise, the guaranteed saving is to be made by comparison with the same kind and grade of fuel. C. To remove the apparatus free of cost to the purchaser at the expiration of thirty days trial, if the guaranteed efficiency has not been demonstrated; provided that the Cornell Economizer Company shall first have the right to personally conduct a United States Standard Blow-Off Test, without expense to it, before being required to remove the apparatus.

D. To replace all parts of apparatus that may be found defective in material or workmanship, during the term of one year from date of installation, provided that such defects shall not be due to improper use while in possession of the purchaser.” The contract price was $1,600; “payment to be made by-notes due May 1st, 1910, and August 1st, 1910, to be dated 30 days after installation of device, with interest added.”’ The device was installed in the latter part of September or the early part of October, 190'9, under the plaintiff’s instructions. The only breach complained of was under guarantee B, the defendant claiming that no saving whatever had been effected by the use of the device. At the trial, the. plaintiff proved the execution and delivery of the two notes described in the narr., and that nothing had been paid on ¹¹¹ either, and on cross-examination of the witness, the treasurer of the plaintiff, by whom the notes were proved, the defendant showed the consideration of the notes to be the installation of the plaintiffs device under the contract mentioned, which it produced and put in evidence. Here the plaintiff rested.

Frederick W. Eckels, the president and manager of the defendant, testified that sometime in August, 1909, E. B. Cornell of the plaintiff company, called on him about purchasing this device, and “told us he would guarantee to save us not less than 15 per cent, and possibly from 30 to 35.” Here counsel for plaintiff interposed, saying, “We do not object to 15 per cent, because that is in the terms of the contract, but further than that we object.” The answer was not completed, and the witness was then asked, “That is 15 per cent, of what?” to which question the plaintiff objected and the Court sustained the objection. This is the ground of the first exception. As this conversation referred to, antedated the contract, it is obvious that this was an attempt,-as expressed in Warren Glass Co. v. Keystone Co., 65 Md. 547 , “to supplant an agreement in writing by parol testimony.” There is no ambiguity or vagueness in the terms of this guarantee requiring explanation by parol testimony or extrinsic evidence, as in the cases cited by the appellant. The increase guaranteed was plainly stated to be “increase in boiler capacity, when said boilers are run to their full rated capacity in accordance with our instructions,” and the rate of increase was to be “not less than 15 per cent.” To permit the defendant to state either in what respect saving was to be effected, or to what extent, when the contract supplied the plain unambiguous answer to both these inquiries, would have been plain error, and the ruling was therefore correct.

The second and third exceptions may be considered together. Edward H. Davis testified that he was defendant’s night engineer from September 7th, 1909, until January 1st, 1910, ¹¹² and returned to its service as chief engineer on May 21st, 1910, which position he held when testifying. He gave his experience in engineering, and described in detail the construction and operation of the device. He said that it increased the consumption of coal on one boiler half a ton in 12 hours, and gave no increase of useful steam; that he made no test up to the time then referred to, but told Mr. F. W. Eckels the result of his observation; that a little later, May 31st, 1910, he made an enact test, and found that he used as much coal under the 100 horse-power boiler, with that device, as he did under a 125 horse-power boiler in use in the plant, without that device, and that he communicated to Mr. Eckles all the details and result of the test thus made; and that the result was that he was burning 1100 pounds more of coal in 12 hours under the 100 horse-power boiler than under the 125 horse-power boiler, and getting less horse power out of it; that the 100 horse-power boiler, internally and externally, was as clean as man could make it, and the test.lasted six or seven days, and that they were using the same coal on all three boilers, and they had no trouble about the burning of the coal.

He also testified that there was constant accumulation of dirt around the retorts through which the steam was caused to pass, and which were a special feature of the device, and that this accumulation of dirt impaired the efficiency of the retorts, and caused increased consumption of coal; that the retorts could not be cleaned while the boilers were running; that he informed Mr. Eckles of all these facts, and that with the defendant’s consent he took the retorts out and burned less coal than with them, and got practically the same evaporation. Mr. F. W. Eckles testified at length, describing the device and its operation, and said they were using the same grade of coal at first, on all the boilers, but later got a better grade, the best they could get, but got no better results. During his testimony, defendant’s counsel said he wished to show that complaints were made by the engineer to defendants “about the amount of coal used,” and asked the ¹¹³ witness, “Did you receive complaints about tbe coal being used, from the engineer who was on the stand?” and the Court sustaining the plaintiff’s objection to this ■ question, the second exception was taken. He was then asked, “Did you receive complaints from the engineer who was on the stand about the retorts getting dirty and being clogged with dirt?” and the plaintiff’s objection thereto being sustained, the third exception was taken.

It is sometimes a controverted question whether certain things were said, irrespective of whether what was said, is true or untrue, and if in this case, evidence had not been given previously that complaints were made, and the nature of these complaints, it would have been proper to ask the questions above stated. But both Davis and Eckels had already testified both to the fact and character of the complaints made, and the defendant could not be injured by refusing a mere repetition of the fact, that complaints had been made. If it could be held technically an error to exclude these questions, it was clearly not a harmful error. Dr. W. B. D. Penniman having qualified as an expert in the use of steam and in boiler tests as to consumption of coal and efficiency of steam, testified that this device is not novel, but is well known to him, and that it was impossible by it to effect the saving claimed for it, or any saving at all.

On cross-examination, he was asked if he knew Powers Magazine, which counsel then held in his hand, and said that he did. He was then asked if that magazine stated steam could be decomposed by a device such as the one in question, whether he would adhere to the opinion he had expressed, he replied that he would. Thereupon, upon cross-examination, defendant’s counsel asked to have the magazine, which plaintiff’s counsel refused, saying it had not been offered in evidence, and the Court refused to require plaintiff’s counsel to produce it. This constitutes the fourth exception. “All the weight of authority is against the admission:of scientific books in evidence.” 8th Bnc..

PI. & Pr. 768; 9 th ¹¹⁴ Amer. & Eng. Enc. Law, 2nd Ed., page 887, and in this State it was held in the leading case of Davis v. State, 38 Md. 15 , that “Medical hooks are not admissible in evidence, either for the purpose of sustaining or contradicting the opinion.of the witness.” But it is generally held, that in cross-examination questions may be based upon the contents thereof, or extracts therefrom to test the value of the opinion of the witness. 8th Enc. Pl. & Pr. 768; and such is the practice in this State.

It was under this practice that Dr. Penniman was asked the question whether if that magazine stated that steam could be decomposed in a device such as the Cornell Economizer, his contrary opinion would be affected thereby. There was no objection made to that question, and the exception taken does not involve the correctness either of the above rule, or its exception above stated. It presents simply a question of the power of the Court to compel the cross-examining counsel to produce the magazine in question, and to submit it to his opponent for inspection and use in his own re-examination of the witness. Upon that question we have been referred to no adjudication.

The appellant quotes Mr. Wigmore, Vol. 3, sec. 1861, to the effect “that where a party having a document at the trial, uses it for any evidential purpose, fairness requires him to submit it for the opponent’s inspection, even though the former has not technically and finally put it in evidence.” ■ The question, however, is not one of fairness or liberality on the part of counsel, but of power on the part of the Court. We think, moreover, that the language of Mr. Wigmore is applicable only to documents (or books) which would be admissible in evidence if offered. This' is directly implied in the language of the extract which we have italicized. Otherwise, documents or books, which are expressly declared to be inadmissible would thus be made admissible.

Nor do we think that this exception comes within the rule in sections 132 and 134 of Poe’s Practice referred to by the appellee, governing failures to produce papers upon' due notice, where the only legal effect of non-production is to ¹¹⁵ permit the party who has called for them, to prove the contents by secondary evidence. Manifestly, that rule can have no application to this exception, because the contents of the book itself, the original document, are intrinsically inadmissible, and the Court can have no power to compel a party or his counsel to produce, and submit to inspection, a scientific book, which, when produced and inspected, could not be admitted in evidence, or be used by a cross-examiner for the restricted purpose above stated. It was decided in a case cited on the appellant’s brief, Boyle v. Boston El. R. R., 208 Mass. 41 , that one party cannot make a paper otherwise incompetent as evidence, competent in his favor, by calling for it and inspecting it on its being produced on his call.

There was no error in the ruling on this exception. The fifth exception was taken to the admission in evidence of a letter from plaintiff to defendant, dated January 5th, 1910, in which plaintiff demanded the execution and delivery of the two notes stipulated for in the contract, and called defendant’s attention to guarantee 0, which