The Board of Water Commissioners for the City of Detroit, Appellant, v. Henry A. Burr, Respondent

The Board of Water Commissioners for the City of Detroit, Appellant, v. Henry A. Burr, Respondent. (Argued April 8, 1874 ; decided May 26, 1874.) This was an action upon a bond executed by defendant, conditioned that the firm of Dickerson & Sickels should faithfully perform a contract between them and plaintiff, by which they agreed to “ build, furnish and erect two square* engines with pumps, boilers and all other fixtures and apparatus necessary to put the said engines and machinery in full and complete order,” etc., the boilers to be connected with the engines ready to run. It .was also agreed that the engine and machinery should, after a trial to be had in the presence of the engineer of the company, perform the stipulated service in accordance with the contract. Plaintiff’s complaint alleged that they laid the necessary and proper foundations, settings and buildings for the machinery, but that the contractors, Dickerson & Sickels, failed to fulfill their contract and abandoned the work. The defence was that by the agreement plaintiff was to erect the buildings and walls to support the engine; that the walls were not made sufficiently secure, strong and rigid, and that this was the cause of the failure of the engine. Plaintiff’s counsel upon the trial requested the court to direct a verdict for plaintiff. This the court refused to do. The court below charged the jury: “ If you find that this machinery did not work because the walls were not sufficiently strong, then you will find a verdict for the defendant. If, on the other hand, you find it did not work for any other cause, no matter what other cause it is, you will find a verdict for the plaintiff.” The court also directed the jury to answer this specific question : “ Were there at the time of the signing of the contract such plans of the machine contemplated by the contract as would enable persons skilled in the art of constructing machinery to build the machinery called for by the contract without information or direction from Dickerson, Sickels or Houghton [plaintiff’s engineer] t ” but directed them not to regard the question, or their answer to it, in rendering a verdict. The jury answered the specific question, “ no,” and found a verdict for defendant. Held, that under the contract plaintiff was bound to furnish a suitable and sufficient building in which to set up the engine to do its work, and, if there was any doubt, it was solved by the acts of the parties, plaintiffhaving undertaken that work and assumed the duty, and this was alleged in the complaint, and as the evidence showed a conflict as to the character and sufficiency of the building, and the effect thereof upon the machinery, there was no error in submitting the question to the jury. Evidence was given on the trial of the completion of the engine and machinery, and that they were in running order. Plaintiff urged that it was necessary for defendant to show a full performance on the part of the contractors. Held, that while this would be so if the contractors had sued to enforce the contract, yet here the position was reversed, and it was incumbent upon plaintiff to show performance upon its part, and that defendant had the right to excuse the contractors non-performance of the conditions as to tender and delivery for use, and as to testing, by showing that plaintiff had not furnished a sufficiently strong and secure structure where the tender and delivery could take place, and the test be safely made. Defendant offered evidence upon the trial of statements and declarations of Houghton, plaintiff’s superintendent of works, as to the boiler; this was objected to and received under a general objection. Held, that as the issue submitted to the jury did not in any way depend for its determination upon the testimony in regard to the boiler, that question being decided by the court in favor of plaintiff, the error, if any, in receiving the evidence was cured, as it could not have injured; that the objection could not be entertained here that the evidence tended to impeach Houghton (who was a witness for plaintiff and denied the declarations) or impair his credibility as a witness upon the issues submitted, as it was not presented or ruled upon by the court below. Anderson v. Rome, Watertown and Ogdensburg Railroad Company (54 N. Y., 334) distinguished. So, also, evidence received under objections bearing upon the specific question submitted to the jury was held not to have injured, as, although the jury were directed to answer the question, they were directly instructed not to regard either'the question or the answer in rendering their verdict. Plaintiff’s counsel asked the court to charge that the alleged defects in the building constituted no default on its part, unless the contractors notified them thereof, as being calculated to prevent the successful working of the machinery. The court substantially declined so to charge. Held, no error; that the contractors were not bound to give notice ; that the agreement, on the part of plaintiff, was absolute and unqualified, and plaintiff bound to perform without notice; that if they lacked knowledge, they were bound to inquire. John E. Burrill for the appellant. Charles F. Sanford for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.