Westinghouse Electric & Mfg. Co. v. Samson Iron Works

GILBERT, Circuit Judge (after stating the facts as above). [1,2] Tlie plaintiff relies principally upon alleged errors in the instructions of the court to the jury on the subject of the plaintiff’s claim for damages. It was agreed in the contract between the plaintiff and the *18 defendant that no property in or title to any part of the apparatus furnished by the plaintiff, and no right to use the same, should pass to the defendant, but that all thereof should remain the personal property of the plaintiff until fully paid for, and that, on default of the defendant in making stipulated payments at the time specified, plaintiff should he. entitled to immediate possession of the apparatus and free to enter upon premises wherever the same might be located and remove its property. The court, referring to this provision of the contract, said to the jury: “If, therefore, you find for the plaintiff, it will .not be entitled to recover for the value of the apparatus installed by plaintiff, or any part thereof, since it remains its property, and there.is no evidence that it has been lost or injured, but it will only be entitled to recover such damages as it has sustained in the endeavor to carry out the contract,'- such as the expense of delivery and installation thereof, and the necessary steps to have it returned to it.” As to the plaintiff’s claim for damages in connection with the second and third generators, the court charged the jury that if they found that the two generators which were not shipped, but were subsequently sold by the plaintiff, were sold for as much as tire plaintiff would have realized for them under the contract, the plaintiff could not be allowed anything for the failure of the defendant to accept them. The plaintiff, while excepting to these instructions, requested the court' to instruct the jury that, if they found for the plaintiff, its damages should be the whole contract price, $7,850, deducting therefrom, first, the market value of the second and third generators at Portland, Or., in September, 1910; second, the value of the component parts of the switchboard at Portland, if the jury found that they had no value as a permanent switchboard, but only as dismantled articles; third, freight charges on the switchboard from Pittsburg to Portland, had it been shipped; fourth, cost of labor and material necessary to erect and install the second and third generators, permanent switchboard, and other apparatus. To the alleged error in the instructions and refusal to i instruct the plaintiff cites authorities to the proposition that if, notwithstanding the reservation of the title of goods in the vendor, he elects to sue the vendee for the purchase price thereof, he waives his claim of title to the goods, and the title passes to the defendant. That proposition is not applicable here, for the reason that the plaintiff did not and could not under the facts sue for the purchase price. It set forth in its complaint the provision of the contract whereby the title was to remain in the plaintiff, and it sued in the first count for damages in the sum of $3,100 for the alleged failure of the defendant to carry out its contract, and in the second count it sued upon indebitatus as-sumpsit for goods sold and delivered and labor and material furnished, of the reasonable value of $3,100. To sue upon an indebitatus, assiimpsit is not to sue for the purchase price. Barrere v. Somps, 113 Cal. 97 , 45 Pac. 177, 572 . By the contract there was a single sum agreed upon as the total purchase price for all the machinery included therein. Before the action was begun, the plaintiff had sold to others the second, and third generators. The plaintiff was no long *19 er in condition to waive its title to the property or to transfer the title to the defendant. It had elected to retain the title. [3] Nor do we find that the instructions so given by the court were subject to the objection that the jury were thereby precluded from awarding the plaintiff damages for the expense of installation and removal of the first generator. The court elsewhere instructed the jury that, if they found for the plaintiff, it would be entitled to such damages as it sustained in its endeavor to carry out the contract, such as the expense of delivery' and installation, and the necessary steps to have it returned, together with such profit as it would have realized on its sale, had the contract been fully executed. The plaintiff contends that the evidence was insufficient to justify the verdict, and that it showed without conflict that the plaintiff performed the contract. There was no exception taken, and there is no assignment of error to present to this court any question of the evidence or the want of evidence. There was no request that the jury be instructed to return a verdict for the plaintiff, and the record suggests no error of law in any of the rulings of the trial court on the effect of the evidence. The trial court, in instructing the jury, said that the whole sum and substance of the case was, Who was responsible for the failure to have the contract carried out? and that as to that question the evidence was “more or less conflicting.” With that statement we agree. [4] The plaintiff contends that the court below erred in admitting testimony given by Head, the defendant’s manager, as to a conversation between him and Spalding, the owner of the building. The defendant, in making out its case, relied upon the allegation that by the plaintiff’s default it was prevented from carrying out its contract, and it alleged in its complaint that on September 6, 1910, it informed the plaintiff that Spalding had rescinded his contract with the defendant on account of the plaintiff’s failure to perform its contract. Under the issues it was proper for Head to testify to the fact that Spalding gave notice that he canceled the contract. He testified that Spalding said: “It is impossible to get power. I must have it. The only thing for me to do is to contract with the Electric Company. I will cancel your contract now, and you must take your things out.” It is impossible to see how the evidence could have prejudiced the plaintiff. [5] Again, the admission of the evidence was not error for the reason that Wernicke, a witness for the plaintiff, had testified to a conversation with Head, in which Head had told him what Spalding had said to him on that occasion, and thereby the plaintiff had opened the way for the defendant to prove by Head what the conversation was. Ibis version, however, did not differ materially from that of Wernicke. We find no error. The judgment is affirmed.