Stockton Iron Works v. Walters

This is an action brought by plaintiff against defendant to recover the sum of $1,460, alleged to be owing for work performed and materials furnished in the repairing of a steamer called the “H. E. Wright.”

In his amended answer defendant admitted that plaintiff performed certain work and furnished certain materials, but denied that they were for the “repair of said steamer ‘H. E. Wright, ’ ” but alleges that plaintiff entered into an agreement with defendant whereby plaintiff agreed to construct and place in said steamer a certain steel shaft and its necessary attachments (describing them), “which said shaft was to be a first-class shaft and in a perfect condition, and fit for the purposes for which it was ordered, . . . for the sum of $1,460”; that, prior to the placing of said shaft in said steamer defendant discovered that the said shaft “was not in

It was claimed by plaintiff at the trial, and admitted by defendant, that the materials and labor referred to in the com

“May 1, 1909.

“Captain Walters, Steamer H. E. Wright,

“Stockton, Calif.

“Dear Sir: We will furnish you with one 8" hammered steel shaft completely machined with two new forged steel cranks (and divers other fittings as part of said shaft, and not necessary to be enumerated) complete, delivered on our wharf for the sum of $1460.00.

“(Signed) STOCKTON IRON WORKS.”

Defendant replied May 3, 1909, as follows: “We hereby accept your proposal of May 1st for one hammered steel shaft complete and you may proceed to get this shaft out at once.

“ (Signed) BENJ. WALTERS. ”

The cause was tried by a jury and plaintiff had the verdict for the sum of $1,460, without interest, and judgment passed for plaintiff accordingly.

Defendant appeals from the order denying his motion for a new trial on bill of exceptions.

1. Appellant claims that the court erred in striking out his counterclaim and portions of his answer and also in refusing his application for leave to amend. Respondent makes the point that, there being no appeal from the judgment, the rulings of the court cannot be reviewed; citing Spence v. Scott, 97 Cal. 181 , [ 31 Pac. 52 ]; Sutton v. Stephan, 101 Cal. 547 , [ 36 Pac. 106 ]; Mock v. Santa Rosa, 126 Cal. 330 , [ 58 Pac. 826 ]. In each of those cases the appeal was on the judgment-roll without a statement or bill of exceptions. The record showed in each case a motion to strike out portions of defendant’s answer and the rulings thereon. The court held that the proceedings formed no part of the judgment-roll and, there being no bill of exceptions or statement, the rulings could not be reviewed. We have here, however, the judgment-roll and bill of exceptions, in both of which the proceedings on the motion are set forth, and it is contended by appellant that the cases cited do not apply. Section 670, Code of Civil Procedure, was amended in 1907 (Stats. 1907, p. 720), making “all orders striking out any pleading in whole or in part” part of the judgment-roll. But the amendment

2. Defendant complains that he was denied leave to file a second amended answer and counterclaim. The request was made upon the granting of a motion to strike out and the overruling of defendant’s demurrer to the complaint. Defendant did not, at the trial, nor does he now, suggest why he desired to amend his answer nor show that he could improve it by amendment. In short, no injury is made to appear by the ruling.

3. It is urged that the verdict was contrary to the evidence. As is quite often the ease, appellant rests his argument largely on testimony adduced in support of his theory, ignoring the

4. Some time after the case had been given to the jury they came into the courtroom and, on being asked if they had agreed upon a verdict, the foreman answered: “Not exactly, your Honor. We want instruction in regard to the interest, whether the jury could cut out the interest, or have anything to do with the interest. The printed instruction says interest from a certain date.” The court replied that all it could do was to call attention to the instructions. Counsel for plaintiff thereupon waived the interest and, with consent of both parties, the court instructed the jury orally that inasmuch as interest had been waived in open court, “if the jury see fit they may cut the interest out of the verdict.” The court then asked the jury if they desired to return to the jury-room. The foreman answered: “I don’t think it would be necessary.” After “a short pause” the jury passed up the verdict for the sum of $1,460 without interest, and on being polled answered that it was their verdict. The error now claimed is that the verdict was rendered “without retiring from the courtroom to find a verdict.” Apparently the jury had reached a conclusion before coming into the courtroom except as to the item of interest, and when plaintiff waived that item, as it had a right to do, it was competent for the jury to return their verdict without retiring from the courtroom. Besides, defendant has not shown, inferentially or otherwise, that he was injured by the conduct of the jury. Apparently he profited by the alleged error.

5. Defendant assigns fifty or more errors in rulings upon the evidence. Some of these are given scant notice by counsel; many of them are mere references to pages of the tran

Witness Tretheway, president of plaintiff company, was asked whether the articles, at the time of delivery at plaintiff’s wharf, were “in the condition required by the proposal and offer of acceptance.” He answered “Yes,” after which defendant objected as leading, suggestive and a conclusion. The court allowed the answer to stand. The objection should have been sustained if it had been made in time and the answer should have been stricken out if defendant had asked to have it done. The principal issue involved the condition of the shaft at the time of its delivery and whether it met the requirements of the proposal and acceptance. But this whole subject was later gone into very fully by both sides and in great detail. We think the error was without prejudice.

6. It appeared that plaintiff contracted with Pennington & Co., of San Francisco, to forge the shaft. On cross-examination Tretheway was asked if he informed defendant of this fact and, on objection of plaintiff as immaterial, the court so ruled. Plaintiff’s offer was to “furnish” a shaft such as was described, not personally to manufacture it. The fact was immaterial.

7. Tretheway had testified, on cross-examination, that his foreman had informed him that objection was made to the shaft; that he sent for Pennington (one of the firm of Pennington & Co.) and they together went on board the vessel where the shaft then was, and there met her engineer and Captain Curry, her commander; that they tried to convince Captain Curry and the engineer that the shaft was in every way suitable for the work. “Q. Then the engineer and Captain Curry had, before or at that time, informed you the shaft was not fit for the purposes for which it had been ordered?” The court sustained plaintiff’s objection to the question. It appeared that defendant was not present at this meeting with Curry and the engineer. The court had previously ruled that what was done by the parties present could be shown, but that the declarations made in the absence of defendant were not admissible and defendant declined to. be bound by what was said in his absence. Plaintiff objected because neither the en

8. The question was asked by defendant of witness Burnett, who was an engineer of experience, but did not show expert knowledge of shafts, whether this particular shaft was ‘ ‘ a safe or unsafe shaft.” Defendant• admitted that witness was not an expert, but contended that expert knowledge was not necessary to qualify the witness to give an opinion up.on the safety of this shaft. We do not agree with defendant in this contention. It is argued that later on the court allowed plaintiff to submit expert testimony by witness Bums, who, it is alleged, admitted that he was not an expert. Of course, any subsequent error of the court cannot affect the question now before us. It seems, however, that the court, after Bums was examined as to his qualifications, held that he was qualified to give an opinion as to the effect a so-called “pipe” would have on such a shaft as is in question.

9. Defendant’s witness, Purington, was asked what effect would this shaft have upon the steamer if it should break. An objection by plaintiff was sustained. Purington had never worked a shaft on a steamboat, though he had expert knowledge in making shafts and could and did testify as to the effect a “pipe” would have in a shaft. We cannot see that any answer he might have made would meet any issue in the ease. The effect which the breaking of the shaft might have would depend upon so many other facts that any answer would be purely speculative. There was no issue as to the damage which might result from the breaking of the shaft.

10. On cross-examination this witness was allowed to answer certain questions put by plaintiff as to whether after a year’s use any defect in the shaft would be likely to develop itself. Defendant objected on the ground that the witness had not qualified except to a limited extent as an expert. The answers were favorable to defendant and hence he was not injured.

11. The cross-examination of defendant’s' witness, Curry, as to what Pennington said when he and Tretheway met Curry on the steamer, was fairly within the rule which permits much

12. Witness Donaher was defendant’s engineer who was present when Pennington and Tretheway went aboard the steamer to examine the shaft. He was one of the class of witnesses, frequently met with, who wander at will and volunteer irresponsive answers. In his cross-examination by plaintiff he several times exhibited this disposition and, on motion of plaintiff, his answers were stricken out. We discover no error in these instances. On redirect, an objection to a leading question was sustained. No error is apparent. His answer: “We had a defective shaft, and always expected and looked for it to break; even when I would go to bed I would think about it,” was properly stricken out.

13. Defendant was called as a witness and was asked to state what changes, if any, were made in the contract at the time it was signed. The court properly refused to allow the terms of the written contract to be varied by parol.

14. Evidence of defendant’s ability to pay for the shaft at any time was immaterial; - His ability was not questioned; it was rather his disposition to pay.

15. Whether or not defendant had entered into a new contract with anyone for a shaft was not material.

16. Witness Gavigan, for plaintiff in rebuttal, was foreman of plaintiff’s works and was quite fully examined as to Ms expert knowledge and capacity to judge of the effect this “pipe” would have and whether it weakened the shaft. The court admitted Ms testimony, and we cannot say that its ruling was error.

17. Witness Pennington was called in rebuttal by plaintiff and was asked whether the condition under which he found the shaft was an unusual condition and, over defendant’s objection, answered: “Not at all. In my judgment it did not impair its usefulness at all for the purpose for which it was intended.” He had qualified as an expert foundryman in making shafts and was qualified to testify as to whether the condition of this shaft was an unusual one.

We think it safe to say that the evidence which went to the jury, taken in its entirety, fairly presented the theories of the respective parties and was free from prejudicial error. Defendant-presented his defense with zeal and ability and, it

18. The court instructed the jury that if they believed from the evidence that the articles were furnished under the written offer of plaintiff and written acceptance of defendant, then “these two papers constitute a contract between the parties, and the plaintiff is entitled to recover the amount sued for herein, unless your minds are satisfied by a preponderance of the evidence that the said articles were not reasonably fit for the purposes intended.” The court charged the jury that “a person who sells machinery manufactured by him is held by law to impliedly warrant such machinery to be reasonably fit for the" purpose for which it was intended,” and that “there is no legal requirement that such machinery should be perfect, unless it be so expressly agreed between the buyer and seller”; and further, that “all that is required, in the absence of an express agreement to the contrary, is that such machinery is reasonably fit for the purpose for which it is intended.” Also that “an imperfection in such machinery that does not render it reasonably unfit for the use for which it was intended will be insufficient to justify the refusal of the buyer of such machinery to accept and pay for the same, and in this case, if you find from the evidence that the machinery sold by plaintiff to defendant was reasonably fit for the purposes for which it was intended, then you must find for the plaintiff.” Defendant complains that, under these instructions, he was compelled, by a preponderance of the evidence, to show that the shaft was not reasonably fit, and that when he showed that there was an imperfection, the burden at once shifted to plaintiff to show, by preponderance of the evidence, that the shaft was reasonably fit for the purposes for which it was intended. It is also claimed as error in instructing the jury that, unless expressly so agreed, there was no legal requirement of plaintiff to furnish a perfect shaft, defendant claiming that, under section 1768 of the Civil Code, it was plaintiff’s duty to furnish a “perfect” shaft. Defendant made the alleged imperfection in the. shaft the subject of his defense in his answer, and his

The court did not err in instructing the jury that statements made by Pennington and Tretheway, at the time they met Captain Curry on the steamer, “cannot be received as going to the establishment of any agreement between the parties touching a new shaft or any guaranty or promise concerning it.” Defendant was not present and no one there at the time had any authority to speak or act for him in the making of any contract. The court did not take the evidence away from the jury any further than this.

The instructions, taken as a whole, fairly and correctly, we think, presented all the issues raised by the pleadings.

Hart, J., and Burnett, J., concurred.