Howard v. Stillwell Bierce Manufacturing Company

This was an action at law by the Stillwell & Bierce Manufacturing Company, an Ohio corporation, having its principal place of business at Dayton, in that state, against W. C. Howard, S. T. Stratton, and J. Rauch, citizens of Texas, to recover a balance due on a contract in writing entered into between the parties hereto, March 23, 1885, for the reconstruction by the company of a flour-mill owned by the defendants in Dallas, Tex. The contract provided, among other things, that the party of the first part (the company) should reconstruct the mill of the defendants upon the roller system, by placing therein certain specified machinery, and 'all other machinery and material necessary to erect and complete a flour-mill of two hundred barrels' capacity in twenty-four hours, according to plans to be made by the party of the first part, and to be placed by them in the mill-house to be built by the party of the second part in Dallas, Tex., party of the second part to furnish proper motive power to drive said machinery, and to extend engine-shaft into basement of mill-house to a point to be hereafter designated by party of first part, and not toexc eed eight feet inside of basement wall. Party of the second part are to build all stone or brick foundations for machinery, and frame all openings in floor for packers, upright shafts, etc. The party of the first part agrees to have the mill completed and ready to run on or before July 15, 1885, provided party of the second part shall have mill-house ready by June 1, 1885. The said party of the first part guaranties that said mill, when completed, shall have a capacity for from two hundred or more barrels of flour in twenty-four hours; and that the result shall be equal to those of any of the roller or other modern systems of milling now in use in this country using the same grades of wheat. The said party of the first part shall perform all the mill wright work, which shall be done in a good and workman-like manner, and shall furnish all materials therefor, except such as are now in said mill and can be utilized, which may be used free of charge by said party of the first part; and the said party of the second part hereby covenants and agrees to pay the said party of the first part for said machinery, materials, and labor the sum of seventeen thousand eight hundred and fifty dollars, as follows: $7,000 cash on shipment of said machines, and $7,000 in nine months from date of shipment of said machinery $3,850 in twelve months from date of shipment of said machinery. Party of the second part to keep the mill insured for the benefit of party of the first part as their interest may appear in case of fire, for which said party of the second part agrees to execute and deliver promissory notes to said party of the first part, dated time of shipment of machinery, bearing eight per cent. interest, and secured as follows: To be satisfactory to the parties of the first part. No claims for damages shall be made by said party of the second part on account of delays incident to starting up. The said party of the second part agrees to be responsible for any damage or loss by fire or otherwise after the machinery reaches Dallas. The title of said machinery shall remain in and not pass from said party of the first part until the same is paid for, and until all the notes, whether secured or unsecured, given therefor, are fully paid, and in default of payment, as above agreed, said party of the first part, or its agent, may take possession of and remove said machines without legal process.'

The amended petition, filed January 31, 1887, alleged that the plaintiff had performed its part of the contract; that the defendants had paid the first payment of $7,000 at the time it fell due, but that they had not paid the two deferred payments, which were then past due; and that they had refused to execute their notes for the deferred payments, according to the contract. The plaintiffs prayed judgment for the sum of $10,850, the amount of the deferred payments, with 8 per cent. interest from May 26, 1885, the date of the shipment of the machinery.

The defendants filed a general denial, and also a plea in reconvention under the laws of Texas. This plea denied that the plaintiff had performed its part of the contract, and sought a recovery from it of the amount of losses caused by such failure of performance. The plea further alleged that the company did not have the mill completed within the time prescribed by the contract; that it did not furnish the machinery nor complete the mill within a reasonable time, or in a workman-like manner, as required by the contract, or furnish all the machinery contracted for; and that not only did the company delay the work beyond the contract time, but, in addition to such breach of the contract, it left the mill in so incomplete a condition that the defendants, at considerable expense to themselves, had to rectify the errors made by the company, and complete the work as it had been contracted to be performed. An amended plea continued as follows: 'That there was a ready cash market in Dallas all this time for flour of the grade said mill would have made if constructed as plaintiffhad agreed it should be, and defendants could have sold all of said flour it could have made during said unnecessary delays caused by plaintiff, viz., 200 barrels per day, and that plaintiff, by reason of the facts above stated, delayed defendants in the manufacture of said flour for sixty days, by which defendants lost a profit of $1 per barrel on 12,000 barrels of flour, or the sum of $12,000.' The defendants accordingly demanded judgment against the plaintiff for the sum of $20,000.

The case came on for trial before Judge McCORMICK and a jury, on the 8th of February, 1887. On that day the defendants moved to suppress the deposition of William Odell, the foreman of the plaintiff company in the reconstruction of the mill, taken at Rochester, N. Y., for the purpose of showing that the delay of the plaintiff in completing the mill was caused by the defendants not having the building completed and ready for the machinery when the same was shipped. The record showed that the deposition was received and filed by the clerk of the court on the 22d of January, 1887, and was opened, at the request of the attorney for plaintiff, on the 5th of February of that year. This motion was as follows: '(1) Because said deposition is not certified to by the officer who took the same, as required by law regulating the taking of depositions de bene esse. (2) Because no reasonable notice of the time and place of taking said deposition was given the defendants, as required by law regulating the taking of depositions de bene esse. (3) Because said deposition was not taken under authority of any dedimus potestatem granted by any court of the United States according to common usage.' The court overruled the motion to suppress the deposition, and it was admitted and read in evidence, to which ruling the defendants excepted. Afterwards, on the same day, the plaintiff moved to strike out so much of the defendants' pleain reconvention as seeks to recover the sum of $1 per barrel on 12,000 barrels of flour, that part quoted above,-which motion was sustained by the court, and the defendants excepted. The plaintiff then introduced in evidence the contract sued on, and gave evidence tending to prove that the same had been complied with on its part. The defendants introduced evidence tending to prove that the mill contracted to be built by the plaintiff for the defendants was not completed within a reasonable time, and was defectively constructed, and that the defendants were delayed in the manufacture of flour by reason of such delay and such defective construction. The defendants then offered, in writing, to prove by their own individual testimony 'that the market price per barrel for flour of the grade the contract sued upon stipulated for, between the middle of July, 1885, and middle of September, 1885, was $5 per barrel; that during that period there was a ready cash market value in Texas for said grade of flour at $5 to $5.50 per barrel, and that the defendants could have sold 200 barrels per day during said period at $5 per barrel, and that upon each barrel so sold they would have realized $1 per barrel profit; that defendants had purchased and held on storage during said period a sufficient quantity of good wheat to have manufactured 200 barrels per day during said 60 days; that the market price during said period of such wheat was 60 to 70 c. per bushel, and that the expense of turning such wheat into flour during said period was 80 c. per barrel, and that defendants had in their employ all necessary laborers and skilled workmen to manufacture said wheat into flour, and were fully equipped with fuel and water and everything necessary to convert said wheat into flour, save and except the parts and pieces of said mill which plaintiff contracted to furnish in the contract sued on,'-all of which above testimony was offered in support of that portion of defendants' plea in reconvention which sought to recover the profits on 12,000 barrels of flour. The court overrule th e offer to prove all those facts, except the fact of the amount of wheat which the defendants had on hand during that period, to which ruling the defendants excepted. The plaintiff, in rebuttal, introduced the deposition of Odell before mentioned, and other evidence tending to prove that the contract was complied with on its part, and that the building was not completed by June 1, 1885. The jury returned a verdict in which they found for the plaintiff, on the contract, in the sum of $12,332.82, including interest; and for the defendants in the sum of $875, as damages. Upon this verdict judgment was rendered in favor of the plaintiff and against the defendants for $11,457.82. A motion for a new trial having been overruled, the defendants sued out this writ.

W. Hallett Phillips, for plaintiff in error.

M. L. Crawford and John Johns, for defendant in error.

LAMAR, J.