Abraham DeBevoise et al., Respondents, v. The Providence and Stonington Steamship Company, Appellant

Abraham DeBevoise et al., Respondents, v. The Providence and Stonington Steamship Company, Appellant. (Argued April 27, 1882; decided May 30, 1882.) This was an action to recover a balance alleged to be due for work and materials in putting a patented device known as “ spirals ” into a boiler of one of defendant’s steamsMps. The answer alleged that the work was done under a special contract, to wit, that the right to compensation was conditioned upon the “ spirals ” working well. The question as to the terms of the contract was presented as a question of fact on the trial without objection, and parol evidence given on both sides in addition to a written contract. Held, that as the question was thus presented, and there was evidence sufficient to sustain the verdict, both as to the contract and as to its performance if as claimed by defendant, it was conclusive here. Upon the trial it was proved without objection that the “ spirals ” were taken out, and were stored by defendant upon its own premises, no notice being given to plaintiff of any defect. The court charged that upon the question whether the “ spirals ” worked well, the fact that defendant did not return them could be considered. Held no error; that if the “ spirals ” were a failure, and the contract conditional, it would have been natural for defendant to have returned them, and the fact that they were not returned tended to show that it understood the contract to be absolute, or if upon condition, that such condition had not been broken. Wheeler H. Peekham for appellant. Edwin Kem/pton for respondents. [MAJORITY] All concur, except Tract, J., absent. Judgment affirmed.