
    Samuel W. Davis v. William M. Bonnewell.
    If a machinist undertakes to construct amachine for the inventor, according to a model furnished by him, and to supply the materials for the purpose, and he constructs it so unskilfully as to be of no use.for the purpose for which it was invented, he can recover no compensation for his work and labor, or the materials supplied by Mm. But it is otherwise, if the failure be owing to defects inherent in the model.
    This was an action of assumpsit, with the usual pleas, for work, and labor, and materials furnished by the plaintiff in the construction of a machine for cutting standing corn, invented by the defendant. The defendant, who resided at Camden, had there exhibited a model of the machine, then recently invented by him, to A. H. Harvey, a machinist of Wilmington, and after some conversation between them in regard to the expense.of making such a machine, requested him to construct one according to the model for him, which Harvey consented to do, or to have done for him; but no special contract was entered into, and no price was agreed upon between them for the work. Harvey, as the defendant supposed, was to find such marterials as might be necessary, and was to construct the machine, or was to have it done at his establishment in Wilmington, and was to be paid for it by the defendant when it was finished. Harvey, however, on receiving the model after his return to Wilmington, not caring to undertake the work himself, spoke to Davis, the plaintiff, another machinist, to make the machine and find the materials, and passed the work entirely over to him, but without informing the defendant that he had done so. On the defendant’s visiting Harvey afterwards, to ascertain what progress had been made in the construction of the machine, he took him to the shop of the plaintiff, and, after introducing him to the latter, exhibited the work to him in his presence, and then left them, and afterwards paid no further attention to the matter, but still without informing the defendant that he had delivered the work entirely over to the plaintiff. The defendant then directed the plaintiff to make some alterations in the plan of the machine; and in all his subsequent visits to Wilmington, to see about the work, he always called at the shop of the plaintiff^ and gave him directions in regard to it, and conferred with him in relation to it; and during the progress of it, various modifications and alterations were suggested by the plaintiff as improvements in the machine, and were acquiesced in by the defendant. After considerable delay, the work was finally completed by the plaintiff, and the machine was sent by him to the defendant, at Camden; but proved, upon a full and practical test of it, to be of no value for the purpose for which it was invented. It varied in several important particulars from the model furnished for its construction, and among other defects was much heavier than was necessary, or the design of the defendant required, and when put in motion would neither operate successfully, nor hold together more than a few minutes. It was also proved, that the defendant afterwards constructed a machine himself, according to the model furnished the plaintiff, which was much lighter, and which, on actual experiment, was found to answer the objects of its invention, and to operate very well. The defendant, without returning, or offering to return, the machine sent to him by the plaintiff, refused to pay for it; and this suit was brought to recover for the work and labor bestowed upon it, and the value of the materials used in the construction of it.
    Bradford, for the plaintiff,
    contended that the defendant was liable to the plaintiff for the work done upon the machine with his knowledge and consent, and that the facts proved would sustain the actioh, although the defence would be that the plaintiff was employed by and acted as the agent of Harvey solely in the construction of the machine, and not by the employment or direction of the defendant himself. But his repeated visits to the shop of the plaintiff, and interviews and consultations with him during the progress of his labor upon it, and the changes and modifications in the plan of it, as originated and suggested by the plaintiff, with a view to render it more efficient and Complete, and to which the defendant freely assented on his part, taken in connection with his knowledge of the fact that the plaintiff not only had the principal, but the entire and exclusive management of its construction, and that Harvey, after his first visit to Wilmington, had nothing further to do with it, and was never afterwards seen or consulted by him in regard to it,—all concurred to prove, or at least to raise a strong presumption that the defendant must have been aware that Harvey had no further connection with the business, but that the plaintiff had been, from, the first, substituted in his place to do the work for the defendant, and that he fully approved of and assented, to it; and if su,ch was the case, then the defendant was clearly liable to‘the plaintiff in the present action. As to the alleged failure of the machine, after its construction, if the jury should not he satisfied from the evidence that it arose from radical defects inherent in the invention, or model itself, hut was owing to the alterations and variations from the plan suggested and introduced by the plaintiff, it furnished no defence to the action for his work and labor upon it, and the materials supplied by him for it; because every one of these changes were approved and assented to by the defendant, before they were introduced in the construction of the machine. But the defendant, in addition to this, had not only neglected and omitted, on receiving it and discovering its failure to operate as designed, to notify the plaintiff of that failure, which possibly he might easily have remedied, but he had also entirely neglected to return it upon the hands of the plaintiff, or to offer to return it to him; on the contrary, he still retained it, with all the materials in it furnished by the plaintiff at his own cost and expense, whilst he refused to pay anything for it. í
    
    Fisher, for the defendant,
    in the first place, argued that, on the facts proved, the plaintiff had no right to maintain this action against the defendant; and his only remedy was against Harvey, who employed him to do the work without the knowledge of the defendant, and who supposed all the time it was in progress, that the former was having it done for him by the plaintiff, according to the original understanding between them -in regard to it.; That he knew Harvey to be a skilful machinist, and reposed confidence in him for that reason; but he had no previous knowledge» of the plaintiff, and would, therefore, have never thought of employing him for any such purpose, and never considered him in his employ at any time during the progress of his work upon the machine. The bill for it was an exorbitant one, and the machine had proved on trial to be a total failure, and was utterly worthless. ¡Nor was this owing, in any degree, to defects inherent in the model, as had been clearly proved; but it was entirely attributable to the imperfect manner in which it had been constructed, and the unwise and fatal alteration which he had advised the defendant to consent to allow him to introduce into the plan of it. Its failure, therefore, to answer the purpose for which it was designed, was entirely owing to the incompetency -and misconduct of the plaintiff in his special line of business; and as no benefit whatever had been derived by the defendant from it, the plaintiff was not entitled to recover any compensation for it. Com. on Contr. 227; 2 Stark. Ev. 642; 1 Stark. Rep. 86; Hall v. Cannon, 4 Harr. 360.
    
      Bradford, for the plaintiff, replied.
   The Court,

Houston, J.,

charged the jury: That if the con-, tract or understanding between the defendant and Harvey was, that the- latter should construct the machine or was to have it constructed for the defendant, the plaintiff could not maintain the action, unless it appeared from the evidence, to their satisfaction, that the work was passed over by him to the plaintiff, to be entirely devised, superintended, and performed by him, and not by himself, or in his establishment, with the knowledge and consefit of the defendant ; for in such a case the plaintiff might recover, if the jury were satisfied from the evidence that the defendant, with knowledge of the substitution of the plaintiff by Harvey in his place, assented to it; and afterwards looked to him and not to Harvey, as the machinist who was to do the work for him. But unless this appeared, the plaintiff could not maintain the action, and -his only redress would be against Harvey who employed him to do it.

As to the manner in which the work had been done, it seemed that this was a machine which had recently been invented by the defendant, and the object was to have a trial machine constructed according to a model submitted by him; and if the machine was skilfully made according to that model, or according to variations or modifications introduced into the plan of it with the approbation and concurrence of the defendant, and it failed of its object in consequence of deficiencies or defects inherent in the model itself, or in the plan of it as modified with the assent of the defendant, the plaintiff would be entitled to recover a fair and reasonable compensation for his labor and the materials furnished by him in constructing it, to be determined by the jury; provided they should be satisfied that he was entitled to maintain the action on the point first adverted to and stated by him. If, on the contrary, it should appear from the evidence that the deficiency was not in the model, but was in the unskilful and defective manner in which it was constructed by the plaintiff, and in consequence of that fact it was of no use or value to the defendant as a machine for cutting corn, the plaintiff was not entitled to recover in this action.

Verdict for defendant.  