
    Wilfred P. Taylor & another vs. Danville Cole & another.
    Ii 4» maker of a chattel, after it is made, agrees to deliver it at the place of business of the person for whom it was made, he is liable for any injury to it from carelessness in the transportation, although at the time of the contract for malting it nothing was said about delivery, and there was no usage as to delivery.
    One for whom a kettle had been made, examined it and knew that it leaked somewhat, but ordered it to be'delivered, without objection; it continued to leak but notwithstanding he gave his promissory note for the price, without objection. Held, that these facts were not, as matter of law, conclusive evidence of his waiver of all claim to damages for its being leaky.
    Contract by Wilfred P. Taylor and Thomas C. Barker against Danville Cole and Albert F. Nichols, for breach of a contract to furnish the plaintiffs with a kettle fit for the manufacture of iron liquor. At the trial in the Superior Court, before Pitman., J., it appeared that the defendants, who were iron founders, undertook to make for the plaintiffs, who were manufacturers of chemicals, an iron kettle holding 1000 gallons, to be used in making iron liquors. There was no evidence that anything was said at the time the contract was made, in regard to the delivery of the kettle, and no evidence as to usage in relation to delivery.
    The kettle was made by fastening the bottom to the sides by bolts and nuts, and there was evidence tending to show that the work was carefully and properly done. After the sides and bot> tom had been fastened together, the kettle leaked a little, in a number of places, at the joint. While it was so leaking, Taylor saw it, said that the leaking would not matter much if it did not increase, but that he wanted Nichols to see it, left the yard of the defendants’ machine shop while the kettle was leaking, and soon after requested the defendants to have the kettle delivered forthwith, without making any objection to its leaking or otherwise, except as above stated. Soon after Taylor left the yard the bolts and nuts were fastened tighter, and the kettle did not thereafter leak while it remained in the yard. On the next day the defendants delivered the kettle to the plaintiffs, leaving it just outside of their manufactory. The distance was considerable and the ground hard and frosty, and one of the defendants’ witnesses testified that moving such a large body under such circumstances would tend to loosen the bolts. Upon the following day the defendants came at the request of the plaintiffs, to set up the kettle. When they arrived they found that the kettle was some distance within the plaintiffs’ manufactory, and there was evidence tend-„g tx. show that the plaintiffs’ servants were then engaged in moving... with crowbars. The kettle was delivered and set up early in nary 1869. Sometime early in the February following, the plaintiffs put iron liquor into the kettle and on the following morning, before any fire had been made under it, found that it was leaking badly at the joint. The defendants were notified of this leakage and requested to remedy it, and on February 19 endeavored to do so, but on subsequent use of the kettle it still leaked. On March 3 the plaintiffs gave their promissory note to the defendants, payable in four months, in full payment for the kettle and without making any objection to it. The defendants were soon after notified by the plaintiffs that the kettle still leaked, and the defendants made attempts to stop the leaking. The evidence was conflicting on the question whether the kettle leaked after this. The plaintiffs retained the kettle and never offered to return it, and the evidence was conflicting whether they ever requested the defendants to come and take it.
    
      The defendants asked the judge to instruct the jury, “ that if they found there was no agreement as to the delivery of the kettle, in the absence of evidence as to usage in delivering articles so ordered and made, then the kettle was to be delivered at the place of its manufacture, and if the same was free from defects and otherwise made in conformity with the contract, when and where it- was finished and ready for delivery, the defendants were not liable in this action; that if, after the kettle was finished, the plaintiffs saw and examined it, and had full opportunity to do so, and at the time of such examination the kettle leaked and the plaintiffs knew it, and they thereupon ordered the kettle to be delivered, without making any objection to the same or as to such leakage, this amounted to an acceptance of the kettle and the waiver of such defect; and that if the plaintiffs knew, on or before February 19,1869, that the kettle was defective and leaky, and on March 3,1869, knowing that such defect still continued, gave their note to the defendants in full payment for the kettle, without making any objection as to the construction thereof or defects therein, this amounted to an acceptance of the kettle and waiver of all claim for damages for breach of the contract.”
    The judge refused to give these instructions, but did instruct the jury, upon the points embraced within said prayers, “ that, the defendants having undertaken to deliver the kettle in point of fact at the manufactory of the plaintiffs, if the leak found to exist when the kettle was set up was caused by any defect in suitable workmanship or any carelessness in transportation, then the defendants were liable; but that if the leak was caused by any carelessness of the plaintiffs in handling the kettle after it was delivered or in setting it up, then the defendants would not be liable; that the burden of proof was on the plaintiffs to show the cause of the leak; that as to the matter of waiver it was competent for the plaintiffs to waive any defects of which they had knowledge; and that the matters stated in the defendants’ prayers for rulings, so far as the jury should find them supported by the evidence, were matters for them consideration in determining whether there was a waiving of the defects now relied on ; but the judge declined to rule that such facts were, as matter of law, conclusive evidence of a waiver.”
    
      The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions. «
    
      J. W. Marshall, for the defendants.
    
      F. T. Gcreenhalge, for the plaintiffs.
   By the Court.

The instructions given were well adapted to the facts of the case, and correctly and sufficiently covered all the points embraced in the defendants’ prayers.

Exceptions overruled.  