
    THE BOARD OF WATER COMMISSIONERS FOR THE CITY OF DETROIT, Plaintiff, v. HENRY A. BURR, and Another, Defendants.
    I. CONTRACT.—CONDITIONS PRECEDENT AND SUBSEQUENT.
    1. Machinery, Construction of, by the One Party, Building and Foundation for the Machinery to be prepared by the Other ‘ Party.
    1. Where the party of the first part agrees to construct and put up for the party of the second part certain machinery, and the party of the second part agrees to furnish the place, building, settings, and foundation in and on which the machinery is to be placed, the contract specifying the machinery only in very general terms, the particulars being designed to be shown by plans referred to in the contract, but which had not in fact been prepared at the time of the execution of the contract.
    1. Duty of party of first part.
    
    
      a. The question might arise, whether it was or was not his duty, at the request of the party of the second part (or even without request), to give information to the party of the second part, as to the weight, size, shape, etc., of the machinery, to enable him to prepare a proper building, settings, and foundations.
    BUT
    even if this question is answered in the affirmative, it would only'refer to the pa/rty of the second part obtaining in a proper wap the necessary information to enable him to perform his part of the contract.
    
    1. Such information may be given orally, in writing, by sketches, or plans, before as well as after the execution of the contract.
    
      2. It is not 7m duty to inspect the building as it is being constructed, or the plans for the same, and to point defects in
    either, as being calculated to prevent the successful working of the machinery.
    1. This is different from the duty of giving information as to the machinery, and also from that of not misleading the party of the second part in an unlawful manner, so as to make something in the nature of an estoppel.
    3. Duty of Party of Second Part.
    1. His duty, after having obtained the requisite information as to the machinery, is so to perform without reliance on the party of the first part, as that the work to be performed by him shall not be defective.
    
      a. The party of the first part is not bound to make any explicit requirement as to the mode in which the party of the second part shall perform his work.
    
      b. If by reason of the defectiveness of the work to be performed by the party of the second part, the machinery fails to produce the result contracted for, the party of the first part is not chargeable with such failure.
    2. Opinion of Party of Eirst Part.
    1. If the party of the second part seeks the opinion of the party of the first part (though at the request of the latter), if the latter gives it honestly but as an opinion, the former is not excused if following that opinion he failed to make a proper structure.
    3. Acquiescence.
    1. Where the party of the first part sends to the party of the second part a sketch indicating certain things to be done, he cannot, so long as he does not disaffirm the natural inference from the sketch, be deemed to have suffered or acquiesced in the construction of a building that does not substantially follow the sketch.
    4. Suggestions, Repetition of, Immaterial.
    1. Where a suggestion has once been made by the party of the first part, it is immaterial whether it was subsequently repeated or not, or whether subsequent ones of a similar kind were made or not.
    5. Agent of Party of Second Part, Interviews with, and Statements by. '
    1. Where the contract provided that the agent of the party of the second part should have access to the work of the party of the first part, and have power to reject inferior work, and cause good work to be substituted, and to condemn any material not of the best quality; interviews with, and letters from and to, and statements by such agent, which took place, passed, or were made after the contract, are admissible in evidence in behalf of the party of the first part.
    6. Experts, Evidence of, as to Machinery.
    
      1. Their evidence as to the capacity of the machinery is admissible. a. It has a bearing on the inquiry, whether the engines failed by reasons of defects in the work of the party of the first part, or defects in that of the party of the second part.
    II. Exceptions.—Charge.—Trial.
    1. When exception not sustainable.
    
    
      a. An exception to a part of a charge containing several propositions, some of which are correct, and others erroneous, cannot be sustained.
    III. Evidence.—Trial.
    1. improper a/nd incompetent midenee, when reception, of not ground for a new t/rial.
    
    1. Where the court can see that such evidence had no bearing on the issue presented to the jury, that it could not have tended to confuse their minds on the issue presented to them, and that the party against whom it was received could not have been harmed by it. a. Application of principle.
    Before Barbour, Ch. J., Curtis and Sedgwick, JJ.
    
      Decided April 7th, 1873.
    Exceptions of plaintiff ordered to be heard at General Term.
    The action was brought upon a bond, made by defendants conditioned, “that if Edward,IT. Dickerson and Frederick E. Sickels, who have executed the annexed contract for engines and machinery, shall in all respects well and faithfully execute and perform, live up to and abide by the same, according to the terms thereof, and shall perform and abide by any alterations which the parties may make therein, then the above obligation shall cease and become null and void, otherwise, etc.”
    The time for the performance of the contract referred to was extended with the consent of the defendants. They claimed that the extension was obtained under circumstances which relieved them from liability as sureties, but as the verdict was in their favor, it is not necessary to allude further to this.
    
      The contract was between Messrs. Dickerson and Sickels, as parties of the first part, and the plaintiffs, as parties of the second part. By the contract, the former agreed to build, furnish, and erect, as thereinafter specified, two square engines, with the pumps, boilers, and all fixtures and apparatus necessary to the engines and machinery, in order for the services thereinafter referred to. The work to be done by them was to conform to the proposal and specifications appended to the contract, and also to plans certified by them and the engineer of the plaintiffs, in whose keeping they were to remain. The boilers for the engines were to be of a ■specified construction and quality, and the contractors, as the agreement termed the parties of the first part, were to deliver the boilers and other machinery “at the ‘ locality selected by the engineer of the water commis- “ sioners for that purpose, and are to connect said boilers “with the engines ready to run, when the setting shall “ have been completed by the water commissioners,
    ‘c according to the drawing made for that purpose and “signed by the contractors and the engineer of the ‘ ‘ water commissioners. ’ ’
    The contractors agreed to furnish and erect everything agreed by them to be furnished, “at such place in the city of Detroit as may be furnished for that purpose” by the plaintiffs, for $50,000, in case said work should be completed, and successfully perform all that it should by the agreement perform, it being provided that the plans and specifications thereto attached shotild form a part of the contract."
    The terms and times of payment were particularly stated. The plaintiffs agreed not to delay the contractors in any of the work they were to do or furnish. The service required of the engines was to be performed according to a formula stated in the specification to the satisfaction of the plaintiffs’ engineers.
    By the specifications the engine and pumps were to be of sufficient power and capacity to elevate 3,000,000 imperial gallons through a pipe of 24 inches in diameter, and 650 feet in length, in 12 hours, to a height of 80 feet.
    All the necessary preparation of foundations and wood-work for the reception and erection of the machinery was to be done by the plaintiffs.
    Appended to the contract was the proposal of the contractors, who guaranteed that the engine should perform a regular duty, according to the formula stated in the specifications, the engine to be run not less than one hundred hours consecutively in making the trial.
    The complaint charged that the contractors had not executed and performed the contract, but had wholly failed to furnish the engines and machinery as they had agreed, and that what was furnished was useless to the plaintiffs, to their damage ; for which they demanded judgment against the defendants, under the bond first referred to.
    The defence was, that the contractors had done all on their part agreed to be done, but that the plaintiffs had omitted to do various things which they were bound to do, and that they were indebted to the contractors, under the agreement, in the sum of $26,000; that the engines and machinery which were delivered under the contract by the contractors to the plaintiffs, in all respects satisfied the contract, in capacity to perform the required service, excepting that the boilers used in them were not sufficient to raise and keep up the necessary pressure of steam, but that the plaintiffs had themselves undertaken and agreed to be and become responsible for the sufficiency of the boilers to satisfy the contract; that the building which the plaintiffs had furnished under the contract, as the place where the contractors were to erect the engines, and the foundations which they provided for the engines and machinery, were inadequate, unsafe, and insufficient for the proper working of the machinery, and that any failure of the engines and machinery delivered by the contractors, in any trial made, to perform anything required by the contract, was not owing to any breach of the contract on their part, or to the insufficiency of such engines and machinery, but to the failure of the plaintiffs in the particulars lastly referred to, as well as to the insufficiency of the boilers.
    On the trial the answer was amended by inserting averments that the plans referred to in the contract as made and certified, never were in fact made or certified, or in fact adopted, before the delivery of the contract, and that for such reason the contract was inchoate and incomplete. On the trial, it was objected by the defendants that they were not liable as sureties, because of this uncertainty and incompleteness of the contract.
    The contract was executed and delivered on August 12th, 1856, although dated July 19, 1856. Before these dates, the contractors and the plaintiffs’ engineer had frequent conversations and correspondence, in which the plans and views of each were discussed, in contemplation of the contractors being awarded by the plaintiffs the work. The exceptions and the facts which relate to them are sufficiently set out in the following opinion.
    The defendants had a verdict, and the plaintiffs’ exceptions were ordered to be heard in the first instance at General Term.
    
      Burrill, Davison & Burrill, attorneys, and John E. Burrill, of counsel for plaintiffs.
    
      Charles H. Woodruff attorney, and Charles F. Sanford and John K. Porter, of counsel for defendants.
   By the Court.—Sedgwick, J.

We are confined to an examination of the legal character of the exceptions taken on the trial.

There can be no doubt that the plaintiffs agreed to furnish the place, the settings and the foundation, where and on which the contractors were to erect the machinery. This agreement they were bound to perform, under the ordinary rules of law that relate to contracts. These had to be furnished before the contractors could perform their part of the contract (Young v. Hunter, N. Y. R. p. 206-7; Stewart v. Keteltas, 36 N. Y R. p. 390; Allamon v. Mayor, etc., of Albany, 43 Barb. p. 33; Goodwin v. Holbrook, 4 Wend. 377). As the settings, foundations, etc., would be built for the purposes of engines and machinery, the plaintiffs might perhaps require some previous information as to the weight, size, and shape of the engines, etc. It is conceivable that a party situated as the plaintiffs were might choose to take the risk of performing his part of the contract, so that it would be fit to bear the machinery and endure with safety its working, whatever its size, shape, or weight might turn out to be. Ordinarily, however, the preparation would be made so as to conform to the machinery as it was designed to be. In such case a question might arise in the construction of such a contract as to whether the plaintiffs were bound to ask from the contractors the necessary information as to the proposed character of the engines, or whether, as the character of the engines, within certain very general limits, was to be within the discretion of the contractors, they would be bound to give information of it (without request) to the contractors (Note to Lent v. Padelford, 2 Am. Leading Cases, 5th ed. p. 65). In this particular case the contract was drawn, as if plans of the proposed work had been made and certified by the contractors and plaintiffs’ engineers. These would have given what was necessary to be known for the erection of a suitable building. This perhaps involved an understanding that the contractors were without special request to give the required information, when, ns happened in this case, the plans were not made or at least certified to, and in the keeping of the plaintiffs’ engineers. Whatever question might arise on this subject, it would only refer, at the best for the plaintiffs, to their obtaining, in the proper way, necessary information to enable them to perform their part of the contract. Beyond that they were held to the performance of their part of the contract without assistance from the •contractors. This question was not raised upon any exception taken on the trial. As the evidence stood, it might have been of no practical use to the plaintiffs to make a specific issue as to it. There was a great •deal of testimony to show that the plaintiffs’ engineer and the contractors had frequent and full inter-change of views and designs as to the work each party proposed to do, and the mode of its accomplishment. If the plaintiffs had required a submission to •the jury as to whether, before the erection of the building, the contractors had truly conveyed enough information to the plaintiffs’ engineer to enable them to furnish =a proper building, it is impossible to say that the jury would have been bound to find for the plaintiffs.

So much has been said for the purpose of considering a request to charge made by the plaintiffs, which was refused by the court. It was “ that the alleged defects in the construction or bracing of the building constituted no default on plaintiffs’ part, unless the contractors notified the plaintiffs of such defects as being calculated to prevent the successful working of the machinery.” This the court properly refused to charge. If we suppose that (as to which we have seen the plaintiffs made no question) their engineer knew what the engines were meant to be by the contractors, or if we suppose even that the contractors, being bound to give information .as to the engines, failed so to do, the contractors were not at all bound to inspect the building as it was being -constructed, or the plans for the same, and to point out defects in either as being calculated to prevent the successful working of the machinery. The plaintiffs were bound so to perform without reliance on the contractors that there should not be such defects. As we have before intimated, this is a different duty from giving necessary information as to the character of the proposed engines. And it is a different duty from that of not misleading the plaintiffs’ engineer in an unlawful manner, so as to make something in the nature of an estoppel against the contractor, in favor of the plaintiffs. Even if the engineer sought the opinion of the contractors, at the request of the latter, if the latter gave it honestly, but as an opinion, the plaintiffs were not excused if their engineer, following that opinion, failed to make the proper structure. The testimony in the case does not exhibit anything which might, in reference to this request, be claimed to be an acquiescence of the contractors in the peculiar construction of the building, or an acceptance of the building, as fulfilling the contract, or a waiver of any other kind of performance in this regard. A controlling consideration in respect of this is, that when the plaintiffs’ engineer proposed to substitute iron columns for stone walls, under certain parts of the engine, one of the contractors, in response to the proposal, sent to the engineer a rough sketch of the building, with buttresses drafted in it as supports of the side walls. The alleged weakness of the building was due to the iron columns being placed there, and the contractors’ sketch put in the buttresses as a compensation for that weakness in their keeping firm and steady those side walls. So long as the contractors did not disaffirm the natural inference from such a sketch, it cannot be said that they suffered or acquiesced in the construction of a building that should have the iron columns, and yet be without the special strength derived from the buttresses, or some equivalent support.

It is said, however, that the letter containing this sketch, and the sketch itself, were sent some time before the execution and delivery of the contract, and cannot affect the contract afterwards made. It could not of course modify or vary that contract. It was, however, competent evidence to show the knowledge and information possessed by each party, after the contract was completed. This makes its only importance on this point.

I conclude, therefore, that the request involved an affirmance as a rule of law, that the contractors should notify the plaintiffs of the existence of defects, which the plaintiffs had covenanted should not exist, and that the court was right in refusing to charge it.

I think the request as made refers to the building after it was constructed and offered in performance for the erection of the machinery. In such case, it was-to be judged of, just as it then stood, and the contractors could not be bound to notify of any defects, inasmuch as the engineer of the plaintiffs was as capable of estimating its qualities as were the contractors. It is not entirely clear that such was the intended meaning of the request, because it was followed by a request now to be stated.

The plaintiffs further requested the court to charge,' “that any suggestions on this subject to the plaintiffs’ “ engineer, prior to the execution of the contract, did “not operate as such a notification, and must be disregarded by the jury.” I take this to have implied that if what was suggested before the contract would have operated as a notification on the subject if it had been given after, it was insufficient because not given after. This does not seem to be correct. The act of notification in such circumstances is only so to inform the mind of the person to be notified, that he may, intelligently and with understanding of the exigencies of the situation, do what he is called upon to do. It is therefore not necessary that he should .gain that information at any particular point of time, provided that he is possessed of it when he is called upon to act, in reference to that which in the first place was pointed out to him.

On this subject it is worth while to see how far the United States Courts have gone. In the case of The Distilled Spirits, 11 Wall, p. 356, Judge Bradley, delivering the opinion of the Supreme Court, said, “that “in England the doctrine seems to be established, that “if the agent, at the time of effecting a purchase, has “knowledge of any prior lien, trust or fraud affecting “the property, no matter whén he acquired such ‘6 knowledge, his principal is affected thereby. If he ac- ■“ quire the knowledge when he effects the purchase, no “ question can arise as to his having it, at that time ; if “ he acquired it previous to the purchase, the presump“tion that he still retains it, and has it present in his “mind, will depend on the lapse of time and other cir- “ cumstances. Knowledge communicated to the principal himself he is bound to recollect, but he is not “bound by knowledge communicated to his agent, “ unless it is present to the agent’s mind at the time of “effecting the purchase. Clear and satisfactory proof “that it was so present, seems to be the only restriction ‘£ required by the English rule as now understood. With “the qualification, that the agent is at liberty to com“municate his knowledge to his principal, it appears to “us to be a sound view of the subject.” I therefore think it would have been error to have charged that the suggestion, if given before the making of the contract, ■could not for that reason have operated as a notification .after the contract was made.

The contractors were not bound to prescribe a plan ■or method of the building. They could not be bound to explicitly require that a plan that they were not bound to make should be carried out. The request to charge that any suggestions during the progress of the work did not operate as a notification, unless they amounted to an explicit requirement that the building should be constructed or braced according to some plan or method prescribed by the contractors, was erroneous, and the court should not have charged it.

The plaintiff took exception to a part of the court’s charge in these words : “I do not think it material in “this case whether Dickerson and Sickels, after that “ suggestion of the column work, made any further suggestion as to the bracing of the walls, or whether they “made any complaints about their not being braced or “the bracing not being sufficient, except so far as these “matters tend to affect the credibility of the witnesses “upon that question.” The suggestion here referred to was the sketch which we have already noticed, and which contained buttresses, as a means of strengthening the side walls. There does not seem to be any doubt that this was an assertion by the contractors to the plaintiffs’ engineers, that in ca,se the iron columns were used, then special means should be used, to strengthen the side walls. The court was right in saying that it was not material whether other suggestions of the same kind were made. If made once, they were not bound to repeat, any more than in case of a repetition they would be bound to state them a third time.

There were other exceptions taken to the charge, which cannot be deemed valid, because they were general in their scope, and were applied to parts of the charge, containing several propositions, some of which were, in each instance of these exceptions, correct (Ayrault v. The Pacific Bank, 47 N. Y. R. p. 576). In such case, if we suppose the charge to be in part incorrect, the exception is likewise so, and cannot be sustained. But in the charge, or the parts here referred to, there was no misdirection of the jury in relation to the questions which were submitted to them..

The court instructed the jury in substance, that they should find for the plaintiff, unless they should come to the conclusion that the failure of the engine and machinery to accomplish the work or service contemplated by the agreement, was solely due to the walls of the building, provided by the plaintiffs, not being sufficiently firm and rigid. This was plainly beneficial to the plaintiff, so far as it took from the jury the other defences set up in the answer.

A great deal of testimony was given, under objection and exception by the plaintiffs, as to interviews, and arrangements between the contractors and the plaintiffs’ engineer concerning boilers, before the contract was made. The defendants sought to prove, by this testimony, that the'boilers were made at Detroit, at the request of plaintiffs’ engineer ; the latter assuming, in behalf of the plaintiffs, to guarantee that the boilers, when made, would satisfy the terms of the agreement in respect of them. It can hardly be debated, that it was within the scope (really or apparently) of the engineer’s authority as an agent for the purpose of attending to the execution of the contract in plaintiff’s behalf, to subvert an important part of the contract by such an arrangement. The evidence tending to show that was not admissible for such purpose. That it was admissible for any purpose does not clearly appear (Riley V; The City of Brooklyn, 47 N. Y. R. p. 446). The court, however, afterwards withdrew from the jury the issue made by the answer, in respect of the boilers, in effect determining it in. the plaintiffs’ favor. The admission of the testimony in regard to the boilers, had no bearing upon the issue of fact presented to the jury, as to whether the sole cause of the failure of the engines was the deficiency of the building. It could not have harmed the plaintiffs unless it tended to confuse the minds of the jury in passing on the issue as to the building, or unless it affected the credibility of some witness. Irrelevant or immaterial testimony might affect the mind of a juror, if it had a false semblance of competent testimony, or if the case were such that it appeared he was led to think it to be his duty to consider the immaterial or irrelevant testimony in reaching a verdict. But the testimony now referred to had no relation to the building, The two matters were disconnected, and no testimony was given that tended to connect them. The jury must be supposed to have known that when the controversy respecting the boilers was determined by the court in plaintiffs’ favor, that the testimony given in regard to that, had no longer any significance in the action.

Bor was the credibility of any witness affected by the testimony. It did not contradict any of plaintiffs’ witnesses. In fact, Mr. Houghton, the plaintiffs’ engineer was not examined as to interviews about the boilers before the making of the contract. The letter written by him, especially that of June 24, 1856, put in evidence by the plaintiffs, did not make a question as to the credibility of Mr. Houghton as a witness.

If these matters, so put in evidence, had been an impeachment of Mr. Houghton’s integrity, they might have improperly injured him with the jury. His good faith and honesty were not involved in those transactions. At most, it appeared he exceeded his power as plaintiffs’ agent, but not with an evil mind or a dishonest purpose.

Inasmuch as we can see that the testimony alluded to did not affect the verdict of the jury, its admission does mot call for a reversal (Rundle v. Allison, 34 N. Y. R. p. 183; Erben v. Lorillard, 19 N. Y. R. p. 302; 57 .Barb. p. 99).

The admission of Mr. Houghton’s declaration (at the time he procured the defendants’ consent to the extension of the time for the performance of the contract), that the plaintiff guaranteed the boilers, we think was admissable. If not, it did not injure the plaintiffs.

The specifications contained a provision that, during the construction and erection of the engine, the engineer of the plaintiffs’ was to have access at all times to the' work, and to have power to reject inferior work, and to cause good work to be substituted, and to condemn any material going into the machinery which should not be of the best quality. This made admissible all the testimony that was given of the engineer’s interviews, letters and statements in respect of the work,, which took place or were made after the contract.

The evidence given by experts on behalf of defendants as to the capacity of the engines, had a definite bearing upon the inquiry, whether the engines failed, because of the character of the building furnished by the plaintiffs. It was the proper basis of an argument, that the proof showed that everything was right so far as the engines themselves were concerned, and the failure could only be explained by relying on the testimony that the building was not suitable.

On the whole, it does not clearly appear that, there was any error in the rulings and charge excepted to, and judgment should be ordered for defendants on the verdict, with costs.  