Chicago v. Greer

ERROR to the Circuit Court for the District of Northern Illinois; the case was thus:

In July, 1867, the city of Chicago published an advertisement inviting bids for the manufacture of 13,000 feet of leather fire-hose, containing specifications as to the quality of material and manufacture and providing that the hose should be warranted to stand a pressure of 200 ''lbs. to the square inch''. The hose was to be deliverable and to be tested in Chicago, on the 1st September. One Greer, a manufacturer of hose in Philadelphia, in response, made a bid in writing for the contract, the hose 'to be tested in a fair and impartial manner, and to be made to stand 200 ''lbs. pressure to the square inch'',' &c. This bid or proposal was accepted and awarded to Greer, who immediately began to make the hose. By the end of August he had made and sent to Chicago 2150 feet of it. At that date he had also made 1000 feet more, which was on the way to Chicago when he received a telegram to send no more hose; the telegram stated that it did not stand the contract test, would not bear the stipulated pressure, and would not be accepted; and also that the hose which had been received was subject to his order. Greer had, at this time, also procured and prepared the material for, and was engaged in the manufacture of the remainder of the hose contracted for. Greer, upon receiving the telegram, went to Chicago, saw the city agents, and informed them that he declined to waive his rights under the contract; that he desired a public trial in the city of Chicago, and asked that an engine might be placed at his disposal, for the purpose of testing the hose. The board informed him that it had been tested and had burst, refused to allow him the use of an engine, and told him that they had entered into a contract with another party, one Gates, for 10,000 feet of hose, and that they could not do anything with regard to his hose. After some discussions between the parties-the city still declining to keep the hose which they had received, or to receive any new-Greer sued them in assumpsit to recover damages for an alleged breach of contract. The principal questions mooted at the trial were whether the contract set forth in the declaration was proved, whether the plaintiff had complied with the obligations assumed by him (the chief question here being as to whether the hose came up to the test), and what damages, if any, had been sustained by the plaintiff in consequence of the refusal of the city to receive the hose and pay for it according to the contract The jury found a verdict for the plaintiff for $11,093.50, and a motion for new trial having been made and refused, judgment was entered against the city. It now sued out this writ of error.

The plaintiff, Greer, on the trial, sought to prvoe that his hose had been subjected to two public tests in Philadelphia, in November and December, 1867, and at each of such tests sustained without injury a pressure of more than 200 pounds per square inch. The city, on the other hand, proved two tests in Chicago, prior to the rejection of the hose, which, as they considered, showed a different result. The hose had in fact from some cause, burst. Greer, in answer to what was thus set up, sought to show that these last tests were made without notice to him, in his absence, and that they were not made 'in a fair and impartial manner.' On the case coming here it appeared that the plaintiff had taken exceptions to evidence, and had excepted generally to the charge, no particular parts in which it was alleged to be erroneous being mentioned.

I. The exceptions to evidence were:

First. Because the court allowed Greer to show that about 700 sides of leather were cut, making 7000 feet of 10 1/2 inch hose; that it was impossible to use that leather for any other than that size of hose called 10 1/2 inch hose. Also, that 10 1/2 inch hose was a remarkable size in the United States, and not made except on special order; that he could not use such hose except for Chicago; that to cut it down to 9 inch hose would be a loss both of material and labor.

Second. Because it allowed a statement of one of the fire commissioners of the city, which he had made in conversation with an agent of Greer, after a question about the hose had arisen, to go to the jury. This commissioner was one of a committee who made the contract, and the statement was that 'to a certain extent he thought the city liable for damages of the contract, on account of using the hose for fires.' The court, in allowing the statement to go to the jury, told them that what was stated 'by the authorized agent of the board as a fact, and not as an opinion, would be competent.

Third. Because one Edward Smidt (who had testified that he was a machinist for fifteen years, and manufacturer of steam-gauges for eleven, that he had tested leather fire-hose several times, though he had not had much experience in doing so), was allowed to state 'whether, in order to make a fair and accurate test of such hose by water pressure,' it would be necessary to do certain things specified.

Fourth and Fifth. Because the court refused to allow the city to show the rata at which they had contracted for hose with Gates, on the difficulty occurring with the plaintiff, Greer, and how offers made by other persons compared with Greer's when he took the contract.

Sixth.-The point of this exception is revealed by the bill, giving the testimony on cross-examination by Greer's counsel of one Richards, a witness of the city, and for twenty years a tanner and currier, and who had given his opinion as an expert as to the proper mode of testing fire-hose. The bill ran thus:

Q. What is the best leather for making leather fire-hose?

A. Leather made from slaughtered hides.

By Mr. Davis, counsel of the city. I submit that this is immaterial; the witness was not examined in regard to it. The contract calls for a specific kind of leather.

(Objection overruled by the court; to which ruling the defendant's counsel then and there excepted.)

Q. What kind of leather was the hose you saw tested?

A. It was a superior grade of leather, I call it the 'Union tanned.'

Seventh.-Because the court refused to let the city put in evidence a copy of a letter written by the city to Greer, after the hose sent by him to the city had been tested by such a process as they professed to consider a fair one; no notice having been given by him to produce the original.

Eighth and Ninth.-Because the court refused to allow one of the fire commissioners of the city, whose business it was to assist in investigating the origin of fires, but who, on a question by the court, stated that he did not profess to be an expert in hose, to state whether he considered that Greer's hose would answer the city's purpose; whether it could be safely used at fires, and whether it was of any value to the city.

Tenth.-Because the court refused to allow a witness to testify how the quality of the hose which they had got from Gates compared with the quality of the hose sent by Greer.

II. Exceptions as to the charge.-The court charged on the subject generally; charging,

1st. In respect to the time when the hose was to be delivered, substantially; that Greer's agreement was to furnish the hose by the 1st of September, 1867; and that unless the delivery, at that time, was waived by the city; or unless the city had rendered the delivery, or offer to deliver, by that time, an unnecessary act, Greer was bound to furnish the hose by that day.

2d. In respect to the failure to put the contract in writing. After observing that one of the city commissioners had testified that this contract was in the usual way, and that if this was the usual way in which contracts with the city were made, it was to be regretted that a practice of thus making them had grown up; that the true way for the protection of the interests of all parties was, when an advertisement was made for proposals, and they were presented and accepted, that a written contract should be entered into by the city with the party proposing, setting forth specifically the terms of the contract-the court charged that if the advertisement was clear and distinct, and if the proposals were also clear, and they were accepted in the terms in which they were made, simply and absolutely, that that contained the contract between the parties.

3d. As to the testing of the hose.-This part left to the jury the question of fact, viz.: whether the hose was made to stand, when tested in a fair and impartial manner, a pressure of 200 pounds to the square inch; whether the tests, at Chicago, when the hose burst, had been applied in a fair and impartial manner, and in a way to do justice to the rights of both parties, plaintiff and defendant?

The court further said:

'You will bear in mind, of course, in connection with this, the testimony as to the test that is generally applied in other cities, as compared with what was applied here. And also the testimony bearing upon this point: that it could hardly be expected that every foot of hose that might be made would stand such a pressure; that there might be some latent defects in the leather, which in testing might not stand such a pressure. Of course, as I understand the testimony, if there should be a defect in some instances in that respect, that would not absolutely defeat the liability of the city. Because it would be fair that the contract should be understood in the manner in which men who are skilled in the business would understand it. And as I apprehend the testimony, it might well happen that in so large a quantity of hose as the plaintiff agreed to furnish, there might be occasionally a defect in the leather which would be unknown, and which no skill could entirely guard against. I think that, under such circumstances, it is only fair that the party should have an apportunity to remedy the defect up to a certain limit. If you think there is such a deficiency in this respect, so many defects as to satisfy you the hose did not come up to the quality designated in the contract, then, of course, the party has not complied with the contract in that particular.'

The city excepted generally to so much of the charge as related to the three matters above presented.

No person appeared as counsel for the city and neither was any brief filed for it; the case being submitted by it on a record of a hundred and forty-one pages.

Mr. Goudy for the defendant in error.

Mr. Justice STRONG delivered the opinion of the court.