B. contracted with C. to construct and put up for him a crushing
plant, with a guaranteed capacity of 600 tons daily, and C. agreed
to pay therefor $25,000, one-half on presentation of the bills of
lading and the remainder when the machinery should be successfully
running. The machine was completed and put in operation October 1.
The agreed payment of $12,500 was made on delivery, and $7500 in
three payments in the course of a month. B. sent a man to
superintend the putting up of the machine and to watch its working.
Under his directions, a book was kept in which were recorded either
by himself or under his directions by C.'s foreman the daily
workings of the machine between October 18 and November 7, which
account was copied by B.'s man and sent to B. The working from
November 7 to the following March was also kept in the same way. In
an action by B. against C. to recover the remainder of the contract
price,
Held:
(1) That B.'S man could use these books in his examination in
chief to assist him in testifying as to the actual working of the
machines from October 18 to November 7.
(2) That, the defendant not having introduced the books, which
were in his possession, in his evidence in reply to the plaintiffs
evidence in chief, could not, in rebuttal, ask a witness to examine
them and state the results as to the working of the machine in the
months of November, December and January, which subjects had not
been inquired about by the plaintiff.
Evidence of a local custom is not admissible unless it is shown
to be known to both parties, and this Court may infer, from the
general course of the inquiries and proceedings at the trial, that
a custom inquired of at the trial and so excluded was regarded by
the court and by both parties as a local custom, and not as a
general custom, although the record may contain nothing positive on
that point.
An exception that the court did not charge either of eighteen
enumerated requests for special instructions except as it had
charged is an insufficient exception.
The Court stated the case as follows:
Page 144 U. S. 477
The defendant in error, plaintiff below, is a manufacturer
engaged in the manufacture and sale of a crushing machine known as
the "Blake" crusher. Plaintiff in error, defendant below, owns and
operates a large mine of iron ore in Clinton County, New York. In
1881 and 1882, plaintiff built for defendant a crushing mill of 200
tons capacity per day, which was accepted by the defendant, and
satisfactorily used for years. The operation of this crusher and
its adaptability to the business necessities of the defendant were
thus fully disclosed to the latter by its experience of these
years. With this experience and knowledge, the following contract
was entered into between the parties:
"Memorandum of agreement made and entered into this 26th day of
March, 1886, between Theodore A. Blake, of New Haven, Conn. and the
Chateaugay Ore & Iron Co., of Plattsburg, New York."
"Theodore A. Blake, party of the first part, in consideration of
one dollar to him in hand paid and of other considerations,
covenants and agrees to furnish the Chateaugay Ore & Iron Co.
with a crushing plant, guaranteeing capacity of six hundred tons
daily, crushed to pass through a round hole 4-16ths of an inch in
diameter, consisting of the necessary crushers, screens, elevators,
shafting, hangers, pulleys, couplings, collars, and belts, in
accordance with the specifications hereunto annexed and drawings
already submitted, delivered free on board cars at places of
manufacture, together with full detailed plans of building for said
crushing plant and arrangement of crushing machinery therein, and
that he will send a competent man to superintend the placing and
erection of the machinery without extra charge, except for board
and traveling expenses, and an experienced man to put on all belts,
on same terms, for the sum of twenty-five thousand five hundred
dollars."
"And the said Chateaugay Ore & Iron Co., party of the second
part, in consideration of the premises and other considerations,
agrees to pay the said Theodore A. Blake or his order one-half the
amount,
viz., twelve thousand seven hundred
Page 144 U. S. 478
and fifty dollars, on presentation of the bills of lading for
the sixteen crushers at the said company's office, and the
remainder when the machinery is successfully running."
"THEODORE A. BLAKE"
"CHATEAUGAY ORE & IRON Co."
"By A. L. INMAN,
Gen'l M'g'r."
The first half of the purchase price was paid at the stipulated
time. The crushing plant was completed and put in operation about
the first of October, 1886. On October 7, defendant paid plaintiff
$2,500, on October 27, $2,500, and about the 9th of November,
$2,500 in addition, making $7,500 paid after the completion of the
plant and the commencement of its operation, and leaving a balance
under the contract of $5,250, for which suit was brought. Another
suit was also commenced for extras and the expenses of the
superintendent. The two were consolidated by order of the court,
and proceeded to trial as one. Verdict and judgment were in favor
of the plaintiff for $9,574.53, to reverse which judgment the
defendant, plaintiff in error, sued out this writ of error.
Page 144 U. S. 482
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The question in this case in whether or not the plaintiff fully
performed his contract of March 26, 1886. The contract stipulated
for payment of one-half of the price before, and of the other half
when, the machinery was completed and successfully running. Now in
addition to the full payment of the one-half, substantially
three-fifths of the other was paid in three successive payments --
the first within one, and the last not until six, weeks after the
commencement of actual operations. There is significance in these
latter payments. While not conclusive on the company, the indicate
that in its judgment, for a while at least, the plant fully
satisfied all the conditions of the contract, and are properly to
be considered in determining the merits of the defense made to this
action.
Page 144 U. S. 483
That defense is that the plant was improperly and unskillfully
constructed, of weak and defective parts, of material not adapted
to the work which it was designed to perform, and that its actual
working capacity did not exceed 350 tons a day. The answer, besides
its defensive allegations, contained a counterclaim.
The first matter we notice is the alleged error in the testimony
of Charles S. Brown, who, from certain account books which he
presented, was permitted to testify as to the actual working of the
plant between October 18 and November 7, giving in that testimony
the actual hours the plant was working, the number of tons crushed,
the hours of delay, and the causes therefor. This witness was sent
by Mr. Blake to superintend the erection of the plant, to watch its
workings when completed, and to make any needed repairs,
improvements, or changes. At his suggestion, after the plant
commenced work, the defendant's superintendent directed the foremen
of the mill to keep these books. The foremen, of whom there were
four, generally made the entries on the books, though sometimes
Brown did the writing at their dictation. The entries were made
daily -- at least, that was the intention and the general practice.
The amount of ore crushed, as disclosed by these books,
corresponded within a few tons with the amount testified to by the
officers of the defendant company. Brown himself was present at the
mill most of the time during the day, and had a general knowledge
of the accuracy of these entries so far as respects the work during
that time. We think the testimony was competent. The books were
kept by the direction of the defendant's superintendent, and the
entries made by its foremen. They were intended to be, and in fact
generally were, contemporaneous with the matters stated, and their
substantial accuracy is corroborated by the personal knowledge of
the witness and the near coincidence of the general result with
that vouched for by the defendant. They may not have been account
books of the defendant, in the technical sense of the term, such as
are generally admissible against a party, but they were memoranda
made under the direction of the defendant, for the purpose of
preserving a
Page 144 U. S. 484
record of certain facts and made under such circumstances as to
be worthy of a measure of credence as against it.
A second matter is this: the general manager of the defendant
was asked what in his judgment was the daily capacity of the mill.
This question was objected to on the ground that the witness was
not shown to be competent to testify as an expert, which objection
was sustained. How much knowledge a witness must possess before a
party is entitled to his opinion as an expert is a matter which, in
the nature of things, must be left largely to the discretion of the
trial court, and its ruling thereon will not be disturbed unless
clearly erroneous.
Stillwell & Bierce Mfg. Co. v.
Phelps, 130 U. S. 520;
Montana Railway Company v. Warren, 137 U.
S. 348;
Inland & Seaboard Coasting Co. v.
Tolson, 139 U. S. 551.
This witness testified that he had been general manager of the
defendant company for six years, and that he was at the mills as
often as twice a month, and usually went there once a week. He does
not appear to have been a practical machinist or to have had any
special knowledge of mining or crushing machinery. He was not
superintendent of the workings of the mine or of the machinery, and
does not claim to have been there regularly, or, indeed, oftener
than once a week, and, as general manager, was apparently more
employed in the financial and outside business affairs of the
company than in the details of the mining or the practical workings
of the machinery. We think the ruling of the trial court in
excluding his opinion was right; at any rate, it cannot be adjudged
clearly erroneous.
Another matter is also complained of, and to a clear
understanding of this question the course of the trial must be
stated. The plaintiff opened by proving the construction of the
mill, and, in a general way, that it had the capacity of 600 tons
daily, and also the payments by the defendant. He then rested, and
the defendant introduced testimony to show that the mill was not of
the stipulated capacity, and explaining the circumstances of the
subsequent payments. This included evidence of the actual workings
of the mill from the first of October, 1886, to the first of
January, 1888, the difficulties
Page 144 U. S. 485
that were encountered in its workings, the stoppages, what was
done on such occasions, and the efforts to remedy supposed defects,
as also the opinions of competent witnesses as to its capacity --
in other words, it went fully into the matter of the actual
workings of the mill and its alleged incapacity to do the
stipulated amount of crushing. In rebuttal, plaintiff called the
witness Brown, who gave the testimony heretofore referred to from
the memorandum books. It appeared from his testimony that the books
had been kept from October 18 till he left in March following. He
had made out from them a statement of facts respecting the workings
of the mill from October 18 to the 7th of November, which he had
forwarded to the plaintiff, and the details of that statement, as
verified by the books, were the sum and substance of his testimony.
After he had finished and the plaintiff had rested in his rebuttal,
the defendant called a witness named Hall, who testified that he
had examined the books, and he was then asked what the average run
per hour was for the months of November, December, and January,
separately, as shown by those books. This testimony was objected to
and ruled out, and of this defendant now complains. We think the
ruling of the court was right. If the defendant had a right, after
the plaintiff had closed his case in rebuttal, to introduce any
testimony at all, such right was limited to the new matters brought
out in the rebuttal, and while the fact of the existence of these
books, and that they were kept for several months, was then
disclosed for the first time, the only matters therefrom presented
to the consideration of the jury were those transpiring between
October 18 and November 7. As to those matters, the witness Hall
was given full liberty of testifying, and that certainly was as far
as the defendant's rights extended. These books were its own books
-- at least made by its own employees under the direction of its
superintendent. It did not offer them when it was making its
defense, and the fact that certain portions of them are brought to
the attention of the jury on plaintiff's rebuttal did not entitle
it thereafter, and after the plaintiff had finally closed his
testimony, to present the whole matter of these books in
evidence.
Page 144 U. S. 486
Still another matter is this: defendant called as a witness
Smith M. Weed, who testified that he was a lawyer, but not in
actual practice, and had not been for eight or ten years; that he
was one of the defendant's directors; that he was interested in
mining iron ore, and that that had been his principal business and
taken most of his time for the past twenty years. He was then asked
this question: "What is understood by a day in the iron mining
business?" -- the defendant's counsel saying that he offered to
prove the independent fact that a day means two shifts of ten hours
each in iron mining. This testimony was offered for the purpose of
interpreting the stipulation in the contract guarantying a capacity
of 600 tons daily -- in other words, the defendant sought to prove
by this that the contract was for a mill capable of crushing 600
tons in twenty hours, instead of twenty-four hours. This testimony
was objected to, and the ruling of the court was stated in these
words: "I do not think that it is admissible unless you propose to
show that that local custom was known to both contracting parties."
Evidently the court understood that a local, and not a general,
custom was sought to be proved. It is true the question is general
in its terms, but for some reason not altogether apparent --
perhaps from the course of the testimony of this witness -- the
court understood the question to be directed to a merely local
usage, to-wit, that obtaining in the mine of which the witness had
been speaking. If it was such local usage, the court was right in
holding that it could not affect the meaning of the terms used in
the contract unless known to both parties; if a custom prevailing
generally, there may be a presumption of knowledge, and the
testimony might have been competent without anything directly
bringing home knowledge of it to the plaintiff. If the court
misunderstood the scope of the question, counsel should have
corrected the misunderstanding at the time, but, simply noting an
exception, they passed on to a further and different examination.
They were notified that the court was ruling on an offer to prove a
local custom. If that was not what they sought to prove, they
should then have stated the fact. Saying nothing, it must be held
that
Page 144 U. S. 487
the court properly interpreted the scope of the offer, and it
will not do now to say that the language of the question is broad
and comprehensive, and that the court ruled out evidence of a
general custom and understanding in the mining business as to the
meaning of a common word. When the general manager of the company
was thereafter on the stand, a substantially similar question was
put to him by counsel, and an objection was sustained without any
comments by the court. Of course, if that ruling stood by itself,
its correctness might have to be determined by all implied in the
question; but in view of that which had previously passed, we think
it fair to hold that the court was simply continuing the ruling
which it previously made, and not that it was passing upon a new
and independent question.
We have been not a little embarrassed by this matter, and the
question is not free from difficulty; but we think the
interpretation we have given is the correct one; at all events, if
not the only, it is a fair, interpretation of the proceedings, and
error is not to be presumed. The rulings of the trial judge are to
be taken as stated by him, and not to be carried beyond his own
statement unless clearly demanded by the circumstances of the case.
It is worthy of note in this connection that, according to the
testimony, defendant's mill during certain months worked twenty-two
hours a day. And further, that in a letter written by the general
manager of the company to plaintiff in 1881, preliminary to the
contract under which the first crusher was furnished by plaintiff,
the writer says:
"What we want is appliances that will crush (without roasting)
200 tons of crude chunk ore in 24 hours, and stand the racket month
in and month out without breakdowns and stoppages. . . . Now if we
can do the work we speak of (200 tons daily) and dispense with
rolls, it is a great desideratum."
Evidently "daily" at that time was used in the ordinary
significance of the term, and it would require very satisfactory
testimony to show that in this later contract it was used in a
different sense. We think it must be held that the court did not
err in its rulings in this respect.
The final matter is concerning the instructions. To the
Page 144 U. S. 488
general charge no exceptions were taken. Eighteen special
instructions were asked, and in respect to them the bill of
exceptions states:
"The court did not charge either of said requests, except as he
had charged. For the refusal of the court to charge in the specific
language of said hereinbefore-recited requests, the defendant's
counsel then and there duly excepted."
In this way only is any exception taken to the matter of the
instructions. But this wholesale exception is not sufficient.
Connecticut Mutual Life Ins. Co. v. Union Trust Co.,
112 U. S. 250;
Burton v. West Jersey Ferry Co., 114 U.
S. 474.
These are the only matters presented for our consideration.
The judgment will be
Affirmed.
