M. A. Phelps Lumber Co. v. McDonough Mfg. Co.

GILBERT, Circuit Judge (after stating the facts as above). [1] The single question is presented whether the court below erred in admitting the testimony which is mentioned in the foregoing statement of facts, and in instructing the jury that they might properly consider the same as tending to show that the defendant acquiesced in the delay in fulfilling the contract. The defendant contends that the testimony was incompetent, for the reason that the plaintiff had denied the allegation in the answer, which averred that it had failed to perform its contract; that such a denial was equivalent to an allegation on its part that it had performed the contract; and that it had not pleaded any excuse or waiver of performance. The trial court ruled that the testimony was admissible in rebuttal of testimony offered by the defendant, regardless of the pleadings. The original contract called for two boilers, made with steel fittings, etc. The defendant had put in evidence a letter written by it on February 25, 1911, discussing the proposed change in the contract so as to call for the delivery of three boilers instead of two, and other alterations in the machinery to be supplied, and offered testimony as to what would be a reasonable time for furnishing the extra boiler, together with the bridging that goes with the boiler, so as to change the installation from two to three boilers, including the construction of the extra boiler, and the delivery thereof. The said testimony was to the effect that two months ought to be a reasonable time. In view of that testimony, it was not improper to show in rebuttal that the delay was caused by the defendant; that as soon as the plaintiff knew that the defendant wished to have three boilers instead of two it obtained terms from the manufacturers, the Muskegon Boiler Works; that it required 30 days for the boiler works to answer the proposition, which answer was then submitted to the defendant; and that the defendant, in changing the boiler room, increased its size, increased the bridging, and increased the steel casing. This evidence tended to show *452 that the delay was occasioned by the act of the defendant, and was not the fault of the plaintiff. [2] The testimony was admissible, also, as tending to show that there was no delay, within the meaning of the contract, in which it was recited that delivery Was to be made “about March 15,” subject to strikes, accidents, or other delays beyond the control of the plaintiff. [3] But, irrespective of the question whether or not the evidence Was admissible under the pleadings, it is very clear that if there was error in its admission it was harmless. The contract contained the following: “The unloading of machinery wlien received shall constitute a waiver of any claim for damage from delay.” It is not disputed that when the machinery was unloaded it was accepted and installed by the defendant. Again, the promissory notes which are sued upon were signed by the defendant on May 15th, May 17th, May 24th, July 20th, all in 1911, from two to three months after the date at which the machinery was to be delivered. • Had the plaintiff deemed that the case was one which required an amendment of its pleadings to conform to the proofs, there can be no doubt that the court below would, upon application therefor, have granted leave to amend. The defendant was not prejudiced by the ruling of the court. It was not taken by surprise. It was aware of all the facts and negotiations which intervened to cause the delay. It had a fair trial upon the merits of the controversy, and an appellate court would not be justified in reversing the judgment on the error assigned. The judgment is affirmed.