Pullman's Palace Car Co. v. Metropolitan Street Ry. Co.
157 U.S. 94 (1895)

Annotate this Case

U.S. Supreme Court

Pullman's Palace Car Co. v. Metropolitan Street Ry. Co., 157 U.S. 94 (1895)

Pullman's Palace Car Company v.

Metropolitan Street Railway Company

No. 146

Argued January 11, 14, 1895

Decided March 4, 1895

157 U.S. 94


In June, 1887, the Pullman Car Company of Chicago wrote to the Metropolitan Street Railway Company of Kansas City, proposing to build for it 25 cable cars according to specifications attached, and to deliver them free on board the Pullman Junction in Illinois, the cars to be inspected and accepted at the Pullman works, and to be paid for on delivery, the written acceptance of the railway company to constitute a contract mutually binding. Nothing was said about brakes except that they were to be operated by gripmen with lever, both trucks. The railway company accepted in writing. The details of construction were then considered and agreed upon between the two companies. Nothing further was said about brakes except that the railway company required them to be heavy and extra powerful. Brakes were then designed by the car company, but no designs of them were furnished to the railway company. When 12 cars were finished, but before any had been delivered, the agent of the railway company went at the request of the car company to the shops of the latter in Illinois, and there made a thorough examination of the 12 cars, working the brakes and carefully watching their operation. He expressed himself entirely satisfied with them, and ordered the others to be finished in the same way, and all to be forwarded. This

Page 157 U. S. 95

was done in five shipments between February 24 and March 30, 1888. Before the last shipment was made, the railway company, on the 23d of March, tried the cars and found that the brakes would not work satisfactorily. They notified the car company at once, and it sent its engineer to Kansas City. When he left Kansas City, he claimed that he had remedied the trouble. On the 5th of April, the car company presented its bill for payment. On the 11th, the railway company declined to pay it unless the brakes were first made right, and asked the car company to send a man to make the necessary changes, adding that if this were not done, it would make the changes itself and charge the car company with the expense of them. The car company did send a man, who worked upon the brakes for some time, but without remedying the difficulty. On the 12th of May, the railway company declined to accept the cars, and so notified the car company. It stored the 25 cars in Kansas City, and ordered a supply of cars elsewhere. The car company thereupon sued the railway company, to recover the contract price for the cars. Held:

(1) That the title to the first 12 cars passed to the railway company when its agent inspected and accepted them at the shops of the car company.

(2) That the title to the remainder passed to the railway company when they were put on cars at Pullman Junction, to be forwarded to that company.

(3) That under the circumstances, the most that the railway company could claim was the reasonable cost of obtaining new brakes adapted for use on the cars constructed under the contract.

The case, as stated by the Court, was as follows:

This action was brought by the Pullman Palace Car Company to recover from the Metropolitan Street-Railway Company the sum of $54,219.70, with interest from March 14, 1888, alleged to be due to it under a certain contract for the construction of cars for the defendant company.

The principal defense was that the defendant rightfully rescinded the contract, and tendered the cars back to the plaintiff, who refused to receive them, and that after such rescission and refusal, the defendant company stored the cars in a proper place subject to the order of the plaintiff. The defendant also, by way of counterclaim, sought damages against the plaintiff for failure to perform the contract.

The action arises out of certain facts set forth in a special finding by the court below. Those facts are substantially as follows:

Page 157 U. S. 96

Prior to May 15, 1887, the Metropolitan Street Railway Company, a corporation of Missouri, was engaged in the construction of a double track railway on certain streets in Kansas City. The maximum grade of its line was thirteen and fourteen feet ascent in a distance of one hundred feet. There were a number of grades on the line running up to ten percent, and also numerous sharp curves.

On the 15th of May, 1887, the defendant's roadbed having been constructed and the tracks laid, its chief engineers wrote to Charles Pullman, the general agent of the Pullman Palace Car Company at Pullman, Illinois:

"We write to say that we are now ready to take cars for our Wyandotte and Twelfth street lines, and should be glad to have you call on us at your convenience."

Upon receiving this letter, Pullman, who had a general knowledge of the grades and curves of the defendant's line, went to Kansas City to discuss the proposed contract. From Kansas City he went to Chicago, and from the latter place, under date of June 21, 1887, sent to the president of the defendant company a letter written by the general manager of the plaintiff, under date of June 21, 1887, as follows:

"I beg to enclose herewith contract with specifications attached, executed by me in duplicate, for the building of twenty-five combination closed and open streetcars for your company. Kindly sign, and return to me one copy of contract for our files. You will notice in the specifications that the space for the lettering has been left blank, and I would be glad if you would indicate on the specifications returned the lettering you desire applied to the cars."

The contract referred to in that letter was in these words:

"Pullman's Palace Car Company will build for the Metropolitan Street Railway Company twenty-five combination closed and open cable cars, as per general specifications hereto attached and made a part of this agreement, and deliver the same f.o.b. [free on board] Pullman Junction, Kensington, Ill., on or before October 10th, 1887, delays by fires, strikes, and unavoidable hindrances excepted, for the sum of two thousand dollars each. Terms, cash on deliveries. Cars to be inspected and accepted at our works. Your written acceptance hereof

Page 157 U. S. 97

will constitute a contract mutually binding upon both companies."

To this contract were appended the above general specifications. These specifications called for cars in length 34'9" "over all," in width 6'6" or more over sides. They contained nothing relating to brakes except the following: "Brakes to be operated by gripmen, with lever, both trucks."

On the 27th of June, 1887, defendant's chief engineers wrote to the plaintiff as follows:

"Your letter of the 21st, enclosing contracts and specifications in duplicate for the twenty-five combination cars for our Twelfth Street line, addressed to our president, Morse, has been referred to us for attention in his absence, and we enclose you with this one copy, duly executed by us on behalf of the company. Will you kindly advise about when we may expect to get the general plans which Mr. Pullman, when here, promised to let us have?"

Between the 1st and 16th of July, 1887, the plaintiff's engineer, Twyman, visited Kansas City, stating that the general purpose of his visit was to determine upon the general features of the cars, the shortest curve and other physical conditions of the road, the radius of the shortest curve a car would have to go around, and to arrange with reference to the outside width and the extra length over all, the relative position of the trucks, the height of the wheels, the steps and the seats, and the distance between the seats, etc. He was at the office of the defendant for some time, had access to the plans and profiles of the road, and, while in Kansas City, certain specifications were approved by defendant's engineers, and were submitted to him. These specifications increased the length of cars to 38 feet "over all," and prescribed their width, width of floor frame, height from top of track to top of floor, distance between center of trucks, wheel base of truck, distance from front of car to center of forward truck, length of close part of car, length of open portion, as well as of rear platform, size of wheels and sixteen cross-seats to be fixed as decided.

The plaintiff then proceeded with the work of construction. The defendant gave no direction in relation to the brakes on the cars otherwise than that they should be extra heavy and extra powerful; nor were any plans or specifications for brakes

Page 157 U. S. 98

furnished to the defendant during their construction. The brake put upon the cars was designed and constructed by Twyman, plaintiff's engineer.

In December, 1887, in response to plaintiff's request that defendant send one of its employees to Pullman to inspect the cars. Lawless, defendant's superintendent, went there for that purpose. Ten or twelve cars were then shown to him as completed, and standing in the shops of plaintiff on the floor where they were run out. Lawless made a thorough examination of them, inside and out, and upon examining the brakes by having them worked from within, and observing their operation and application while under and at the side of the car, announced himself as satisfied with them, and requested the representative of the plaintiff present to finish the others up in the same way, and forward them. No further request was made by Lawless for testing the cars, and no other facilities were offered by the plaintiff for making such test and examination.

The first five cars were shipped by plaintiff February 24, 1888; the next shipment, of eight cars, was on March 1, 1888; the next, of two cars, March 17, 1888; five cars were shipped March 27, 1888, and the remainder on the 30th day of March, 1888.

When the cars reached Kansas City , they were stored in defendant's power house, because the eastern extension of its line was not then in readiness for operation. They were taken into the house by passing them over a curved track from the street. This curve was 30-foot radius. When the first lot of cars were being passed around this curve, it was found that the wheels "bound against the sills." Thereupon defendant's engineer teiegraphed plaintiff as follows: "Forward truck of cars will not pass around 30-foot radius curve. Lengthen sway-chains, and cut away lower corner of middle sills." To this telegram plaintiff answered: "Telegram received. Will make alterations requested.

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