Harrington v. Smith

In an action for breach of warranty and for false representations in the sale of a steam-engine, the declaration alleged a warranty and a false representation that the engine was capable of yielding a certain horse power. It appeared in evidence that the defendant advertised the engine as of a particular make and of a certain horse power, and the plaintiff bought it after having it examined by an expert; and that manufacturers’ ratings were not uniform, and were always below the horse power at which engines could be reasonably run. Held, that the plaintiff was not entitled to ask an expert as to what horse power was meant when an engine was advertised as of a certain horse power; and was not entitled to a ruling that it was a question for the jury whether the defendant did not by his advertisement hold out that the engine was of a certain power by the manufacturer’s rating. Held, also, that the plaintiff had no ground of exception to a ruling that the engine must be capable of furnishing the horse power mentioned, without being strained or injured as a machine, and to a ruling that the jury must be satisfied that the representations made by the defendant were influential in inducing the plaintiff to make the purchase. .

Contract in two counts, with a count in tort. The first two counts were as follows: “ 1. And the plaintiff says the defendant sold and delivered to the plaintiff one Putnam steam-engine for the sum of five hundred dollars, and warranted the same to be an engine of thirty-five horse power and capable of making and yielding such power, whereas said engine was not of thirty-five horse power and capable of making and yielding said power, but was of much less power, to wit, of only fifteen horse power, wherefore the plaintiff says the defendant has broken his contract of warranty; and the plaintiff, on discovering that said engine was not as warranted, rescinded the contract, notified the defendant thereof, and demanded of him to take away said engine, and has since held the same subject to the defendant’s order: wherefore the plaintiff is entitled to recover of the defendant the price paid by him for such engine, and other damages by him sustained by reason of the defendant’s breach of contract. “ 2. And the plaintiff says the defendant sold and delivered to the plaintiff one Putnam steam-engine for the sum of five hundred dollars, and warranted the same to be an engine of thirty-five horse power and capable of making and yielding thirty-five horse power: whereas said engine was not of thirty-five horse power and capable of making and yielding such power, but was of much less power, to wit of fifteen horse power, and the plaintiff is entitled to damages for the defendant’s breach of his said contract of warranty.” The count in tort was as follows: “And the plaintiff says that he, being desirous to purchase a Putnam steam-enginé of at least thirty-five horse power, applied to the defendant, who had an engine advertised as such for sale, to purchase, and told the defendant that he required an engine of at least that power; that the defendant falsely and fraudulently represented to the plaintiff that the defendant’s Putnam steam-engine was an engine of thirty-five horse power, and the plaintiff, believing and relying on said false representation made by the defendant, bought said engine of the plaintiff, and paid him therefor the sum of five hundred dollars: whereas said engine was not an engine of thirty-five horse power, but of much less horse power and unfitted for the plaintiff’s needs, all which the defendant well knew; all to the great damage of the plaintiff.” The answer denied any warranty; alleged belief on the defendant’s part that the engine was capable of producing thirty horse power, and that the defendant so informed the plaintiff; averred that the plaintiff relied upon the examination and statement of an expert employed by himself; and that the engine was capable of producing the power which the defendant told the plaintiff it was capable of producing. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, which, after stating that the pleadings were made a part thereof, proceeded, in substance, as follows: The plaintiff offered evidence tending to show that the defendant advertised the engine in a newspaper as follows: “ For sale cheap, 30 horse power Putnam engine; ” and put in evidence a bill of parcels signed by the defendant, which described the article sold the plaintiff as “ 1 Putnam engine; ” that the term Putnam engine meant and was used by the parties to mean an engine of the make of the Putnam Machine Company of Fitchburg; that the engine in question was made by that company in "I860 for, and was sold as, a twenty horse power engine; that the commercial rating of an engine is the average power which the manufacturers make such engine to furnish safely, to "advantage, and with economy, the “ indicated ” horse power is that which under different heads of steam the engine can do, running up to the maximum it can furnish, and the “effective” horse power is that which any given pressure of steam will furnish, in application to running machinery, &c.; that manufacturers’ ratings are not uniform, but differ at different manufactories; and that such ratings are uniformly below the horse power at which engines can reasonably run. The defendant testified that he had changed the cut-off of steam in the cylinder from cutting off at five eighths the length of the cylinder to seven eighths of said length, and evidence was introduced to show that the point of cut-off was that point where the direct pressure of steam, i. e. its admission into the cylinder, stopped and left the rest of the piston stroke to be made by the expansion of the steam admitted up to that point; that the change in the point of cut-off increased the horse power of the engine by continuing the direct pressure longer and reducing the space to be covered by expansion ; that the increase of power so acquired was much less in proportion than the increase of steam used in making it, and therefore of the fuel used; that such increase of power was not economical, and that the fixing of the point of cut-off at seven eighths of the length of the cylinder, in slide-valve engines like this, was not practised by engine builders, including the Putnam Machine Company. The defendant introduced evidence tending to show that he had informed the plaintiff’s agent, and an engineer who was with him, of all he had done in altering the cut-off point in this engine to increase the power, before the sale was completed; and on this and other evidence in the case, this, which was a controverted point, was, with the other issues of fact, submitted to the jury. Evidence was also admitted to show that the plaintiff’s agent took with him to Leominster, during the negotiations between the parties, an engineer, who, at the plaintiff’s request, examined the engine, and reported favorably on it to the plaintiff. It was a controverted point whether this examination and report included an investigation of the capacity of the engine to furnish power or not, and it was also controverted whether the plaintiff made the purchase relying on the defendant’s representations or not, the defendant contending that the plaintiff relied solely on the judgment of the said engineer. There was evidence tending to show that the engine in question ran under high pressure, as ■ indicated by experiment, thirty-three horse power. The plaintiff’s counsel called to the stand an engine builder and dealer, whose qualifications as an expert in the building and selling of steam-engines was not questioned, and asked him the following question: “ In case an engine is advertised of a certain horse power of a certain make, is there a universally understood meaning of the trade as to what horse power is referred to, that is, whether minimum, maximum rated, effective, or otherwise?” To this question the defendant objected, and the judge excluded it, but not on the ground that it was leading in form. The plaintiff requested the judge to instruct the jury as follows : “ It is a question for the jury in this case whether the defendant held out in his advertisement, and throughout the bargain, that the engine was a Putnam thirty horse power engine, and whether by such a representation he did not offer the engine as a Putnam thirty horse power engine at the manufacturer’s rating.” This ruling the judge refused to give; and upon this point instructed the jury as follows: “You must be satisfied that the engine sold by the defendant to the plaintiff was a practical thirty horse power engine, that is capable of furnishing thirty horse power without being strained or injured in its parts as a machine.” The judge instructed the jury on the question as to how far the plaintiff must have relied on the representations said to have been made by the defendant as to the power of the engine, during the negotiations, in order to enable him to maintain his action, as follows: “ You must be satisfied that the representations as to the capacity of the engine, made by the defendant to the plaintiff, induced him to make the purchase, They need not have been the sole inducement, but must, have been influential in his making the contract. If the plaintiff purchased the engine upon his own judgment, after an inspection of the same by his agent, and upon that agent’s report to him upon the engine, irrespective of the defendant’s representations or advertisement, the plaintiff cannot recover.” At the conclusion of the charge, the plaintiff’s counsel called the attention of the judge to what he claimed to be the insufficiency of this instruction, in view of the fact that one ground of his action set forth in the pleadings was for a breach of warranty, contending that, if the jury found that the representations made were as claimed by the plaintiff and amounted to a warranty, such warranty was a part of the contract, and it need not be shown that he was influenced by such representations to make the purchase. The judge declined to change or enlarge his instructions on this point. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.