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with reference to the outside width and the and cut away lower corner of middle sills.* extra length over all, the relative position of To this telegram plaintiff answered: "Telethe trucks, the height of the wheels, the steps gram received. Will make alterations re and the seats, and the distance between the quested." seats, etc. He was at the office of the de On the 22d of March, 1888, before all tbe fendant for some time, had access to the cars had been shipped, the east end of the plans and profiles of the road, and, while in Twelfth street line was completed so that Kansas City, certain specifications were ap a car could run over that part of the line proved by defendant's engineers, and were Defendant's*superintendent took out one of submitted to him. These specifications in the cars for trial, when difficulty about the creased the length of cars to 38 feet "over brakes manifested itself. The difficulty was all," and prescribed their width, width of that, when the brakes were so adjusted that floor frame, height from top of track to top they could be used to stop the car on a. of floor, distance between center of trucks, straight, level track, in passing around a wheel base of truck, distance from front of curve or up a grade they would bind against car to center of forward truck, iength of the wheels, causing them to slip, and at close part of car, length of open portion, as times throwing the car from the track. If well as of rear platform, size of wheels and the brakes were so adjusted that they would 16 cross seats to be fixed as decided.
not bind on the curves or grades, then they The plaintiff then proceeded with the work would not work on a straight, level track of construction. The defendant gave no di. so as to stop the cars. rection in relation to the brakes on the cars On the 23d of March, the defendant, by its. otherwise than that they should be extra superintendent, wrote to the general man
heavy and extra powerful; nor were any ager of the plaintiff: "We tried one of your plans or specifications for brakes furnished
cars over the line yesterday, and found that to the defendant during their construction. the brakes would not work satisfactorily: The brake put upon the cars was designed in fact, were perfectly useless. I think the and constructed by Twyman, plaintiff's en reasons for this are: There being so many gineer.
connections, and consequently so much lost In December, 1887, in response to plain motion, that before the shoes hug the wheels, tiff's request that defendant send one of its the brake lever comes to the limit of the employés to Pullman to inspect the cars, quadrant. Before starting out with the car, Lawless, defendant's superintendent, went we adjusted the brakes so that the shoes there for that purpose. Ten or twelve cars touched the wheels, but, notwithstanding were then shown to him as completed, and this, we could not lock the wheels, or even standing in the shops of plaintiff on the hold the cars on the lightest grades. As a floor where they were run out. Lawless
ter side and out, and upon examining the brakes on the subject, and what remedy you proby having them worked from within, and ob pose." serving their operation and application while In response to this letter, Twyman, the under and at the side of the car, announced plaintiff's engineer, came at once to Kanhimself as satisfied with them, and requested sas City, and attempted to remedy the trouthe representative of the plaintiff present to ble with the brake, and, on leaving, claimed finish the others up in the same way, and for that he had done so. ward them. No further request was made by On the 5th of April, 1888, the manager of Lawless for testing the cars, and no other the plaintiff wrote to the defendant's pres. facilities were offered by the plaintiff for ident: “The entire lot of twenty-five cars making such test and examination.
have been delivered, thirteen of them hay. The first five cars were shipped by plain ing been shipped in February. Bills have tiff February 24, 1888; the next shipment, of been rendered your company for the amount eight cars, was on March 1, 1888; the next, of $50,000, being the original contract price of two cars, March 17, 1888; five cars were without extras, bills for which will be sent shipped March 27, 1888; and the remainder your auditor in a few days. Will you kindly on the 30th day of March, 1888.
direct a prompt remittance for the bills alWhen the cars reached Kansas City, they ready rendered ?" were stored in defendant's power house, be The defendant's whole line was ready to cause the eastern extension of its line was be opened on or about the 7th or 10th day of not then in readiness for operation. They April, 1888, when the cars for the first time were taken into the house by passing them were placed on its road. This was shortly over a curved track from the street. This after Mr. Twyman had left Kansas City. curve was 30-foot radius. When the first * Upon the recurrence of the trouble in oplot of cars were being passed around this erating the cars, the defendant, under date curve, it was found that the wheels “bound of April 11, 1888, wrote to plaintiff: “I against the sills." Thereupon defendant's have delayed answering your letter of April engineer telegraphed plaintiff as follows: 5th for some days, as I wished to see "Forward truck of cars will not pass around your
in practical operation before 30-foot radius curve. Lengthen stay-chains, making a reply. The Twelfth street cable
fine has been running since Saturday, and your company. Speaking of the paint rewe should now be operating with a full minds me that our people report that the equipment if we had not been obliged to alkali water is very severe on the finish of make constant repairs and changes to the your cars, as we know from our own excar brakes. These are very unsatisfactory, perience with sleeping cars where alkali wa. and we have hardly been able to make a ter is used. Another suggestion in this conround trip with a car without stopping to section I beg to make is that, if your people make repairs, and on several occasions have would take the new cars in shop within been obliged to run over a considerable por- | about four or five months after they are retion of the line with no power to set the ceived, and give the paint a thorough cleanbrakes. I will make no attempt to go into | ing, and then two coats of varnish, they this matter in detail, but wish to say that would run for at least a year without hay. I shall insist on these cars being made right | ing to be varnished again, and it would also In this respect before I should be willing to preserve the life of the paint." approve your bills. If you will send a Immediately thereafter the plaintiff's en. practical man here to take charge of these gineer, Twyman, came to Kansas City to necessary changes, it will be the best plan; look after the trouble in question, and did otherwise we shall be obliged to make them, some work on the brakes while there; but, and charge you with the expense. There are being called away by letter or telegram, he some other things about the cars which are left for Chicago, stating that he would soon not as they should be, but which do not inter return and complete the work. Instead of fere with the operation of them. Many of so doing, he wrote a letter, saying: “I am the panels are badly cracked, and the paint sorry not to be able to return to Kansas ing on part of the cars, at least, is very poor City as quickly as I anticipated. We have, ly done. The attention of your engineer was however, arranged to send you a man immecalled to these points, and he admitted that diately, who will take charge of the necesthe work was not as it should be. I have no sary alterations of your cars. There will be desire to delay the settlement of your bills, no necessity of his leaving Kansas City until and would gladly approve your vouchers for everything is arranged to your satisfaction, them to-day if we could use the cars, as it and I will probably come out there again is costing the company a very large amount towards the end of the week." of money every day that we cannot operate *Immediately following this letter, the with a full equipment. Let me hear from plaintiff's mechanic, one Overton, came with you in regard to what action you will take typewritten instructions from Twyman, and as to the brake repairs at your earliest con went to work to remedy the defect in the venience."
brakes. He went over the cars one by one, To this letter the plaintiff, under the date and pronounced them ready for service. of April 13, 1888, replied: “Your favor of This mechanic stated that he had done all the 11th instant received and noted. I re he could do to remedy the difficulty in quesgret to hear that you are having any fur- tion, and, it it did not accomplish that end, ther trouble with the brakes on the combina. he did not know how to remedy it. Nottion cars, as our engineer reported on his re withstanding the work and effort of this meturn that the trial made on the brakes on one chanic, the same difficulty thereafter conof the cars while he was there, after some tinued to manifest itself in the operation of slight changes had been made, proved en the cars as to the working of the brakes. tirely satisfactory, and there was every rea The defendant's president then wrote to son to suppose that with these little chan the plaintiff, under date of May 12, 1888: ges the brakes* would work well on the re “I have delayed corresponding with you furmaining cars. I regret that your engineer | ther in regard to the Twelfth street cars unor superintendent did not wire us of the sit til your mechanic had finished his work. uation as indicated in your letter, as we The result of this work has been very little would have sent our engineer over immedi material improvement in the action of the ately. As it is, he will leave for Kansas City brakes, and the cars at no time during the to-night, and I trust that, in conjunction progress of the repairs have been in a sat. with your people, the defects reported can isfactory condition to operate, and not in be easily remedied. Our engineer did report such condition now. This fact has been reon his return that the paint was acting badly ported to tlie board of directors, which has on a portion of the new cars, and we are to-day passed a resolution rejecting the sending out two experienced men to attend twenty-five cars furnished by your company to the paint work on such of the cars as re for Twelfth street on account of the imperquire it. It is proper to explain just here fect brakes and other seriously objectionable that the defect seems to be with the middle features, and has instructed me to notify you panel, which is painted with what is called to this effect, and that the cars are subject *crimson lake,' and which is one of the most to your order." difficult colors to hold. We regret exceeding To this letter the plaintiff replied, under ly that there has been any trouble in this re date of May 17, 1888: “Your letter of the gard, and you may rest assured that the 12th instant, relating to the twenty-five comdefects will be remedied without expense to bination cars built by this company for your
company, has been received and noted. You Louis, Missouri, and were operated by a are cognizant of the fact that the cars were brake of a different pattern, costing from built according to plans approved by your seventy-five to one hundred dollars apiece. chief engineer; the material used, as well as "The defendant did not use and operate the workmanship, being first class in all re the cars in question longer than was reason. spects. The cars before shipment were in- | ably necessary to ascertain whether they spected and accepted by your general super- could be successfully operated with the brake intendent. The cars were then shipped to, furnished therewith. received, and put in use by you. Subse “During the time defendant ran the cars quently you made complaint that the brakes on its road, during the tests made, as heredid not in all respects work satisfactorily, inbefore found, passengers were received and a competent mechanic was promptly thereon and fares collected from them by desent to examine the brakes and make any fendant. The successful running of the adjustment found necessary. When the trains was frequently interrupted by breakbrakes were examined and adjusted on one ing of the cable and the locking of the car car, your officers pronounced them satisfac-wheels, in consequence of the defective contory. Thereupon the brakes were in like struction of the brakes, and defendant so manner* examined and adjusted on the re continued in the attempt to run said cars maining cars, all the cars then being in use during the time of plaintiff's promises to reby your company. In view of the facts, pair the alleged defect, and on such trips re your present statement to the effect that you ceived on board of said cars passengers, and reject the cars on account of 'imperfect collected from them the customary fare. On brakes and other seriously objectionable fea the trial, defendant offered to prove that, ow. tures' is quite atonishing, and I must as ing to the insufficiency of the brakes, the sume that you have been misinformed as to cars were run at a loss, and that no profit the condition of the cars, as I am unwilling resulted from collection of fares. On plainto believe that you would knowingly allow tiff's objection, this testimony was by the yourself to be a party to such an unreason
court excluded. able and unfounded claim. I have to re
“Defendant had in its employ during the quest, therefore, that you will without fur. time in question two engineers of skill and ther delay remit the amount due this com experience, one of whom, Mr. Lawless, the pany for said cars, as per bills heretofore same person who went to Chicago to inspect rendered, and thus avoid the necessity of the cars at plaintiff's yards, bad experience any action on our part to enforce the pay
in the construction and practical operation of ment of the amount due us."
cable cars in San Francisco, California, prior The following additional facts were found to the time of taking service from defendby the court:
ant." “The cars could not be operated success Upon the foregoing facts, the court, on its fully on defendant's railroad track for which own motion, declared the law to be that the they were designed with this brake, nor up- defendant had the legal right to rescind the on similar lines, and this defect or inability contract for the purchase of said cars in the in the brake was not apparent nor discov time and manner above set out, and that the erable upon any reasonable inspection made defendant rescinded the contract in accordat the place of their manufacture, and could ance with its legal right so to do, made a not be discovered without a practical test on
lawful tender of the cars to the plaintiff, and the defendant's railroad track or over a like was not liable for the contract price of them, track. The defect in the brake was a latent or any other sum; and that the defendant one, which did not and could not develop was entitled to recover from the said plainto the observation on inspection, and was
tiff the freight and drayage on said cars from only discoverable when put into use on the Chicago to Kansas City, amounting to the defendant's track or similar track.
sum of $1,088.50, for which judgment was “The defendant paid the freight and dray- | entered. age on said cars from Chicago to Kansas John S. Runnells, William Burry, and GarCity, the sum of $1,088.50, and paid for build diner Lathrop, for plaintiff in error. Waling house in which to store the rejected cars lace Pratt and Frank Hagerman, for defend$1,850.
ant in error. “After the sending of the letter by defendant's president to the plaintiff informing it Mr. Justice HARLAN, after stating the that the cars were rejected and were at facts in the foregoing language, delivered the plaintiff's disposal, the defendant built car opinion of the court. house at or near Kansas City, and stored The facts found by the court below, as therein these cars, where they have ever above detailed, bring this case within a very since remained.
narrow compass, and render it*unnecessary “The defendant operated upon its said to make an extended review of the very large road combination cars of a similar character, number of adjudged cases, American and weighing about six hundred pounds less than English, cited in argument. the cars in controversy, which were manu The subject of implied warranty in sales factured by the Laclede Car Company, of St. of personal property was examined by this
court in Bridge Co. v. Hamilton, 110 U. S. 108, 116, 3 Sup. Ct. 537, and subsequently in Seitz v. Machine Co., 141 U. S. 510, 518, 12 Sup. Ct. 46. In the first of those cases it was said that, "when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process, and against which reasonable diligence might have guarded. This presumption is justified, in part, by the fact that the manufacturer or maker, by his occupation, holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles are designed. When, therefore, the buyer has no opportunity to inspect the article, or when, from the situation, inspection is impracticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely on the judgment of the seller as to latent defects of which the latter, if he used due care, must have been informed during the process of manufacture. If the buyer relied, and under the circumstances had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use.” This principle was reaffirmed in the other case above cited, and it was there said: "But it is also the rule, as expressed in the text-books and sustained by authority, that where a known, described, and definite article is ordered of a manufacturer, although it is stated by the purchaser to be required for a particular purpose, still, if the known, described, and definite article be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer."
These cases were much commented on in argument, and for that reason we have (leemed it proper to indicate the principal ground upon which each was determined.
The present case has some features that were not in either of the others. By the written contract between the parties, the cars that the plaintiff agreed to construct were to be inspected and accepted at the works of the plaintiff, after which they were to be delivered by the plaintiff, free on board the cars, at Pullman Junction, Kensington, Ill. After 10 or 12 cars were completed, and were inspected at the works of the plaintiff by the superintendent of the defendant, the latter expressed himself satisfied with them, and requested the plaintiff to finish the others in the same way and forward them. Clearly, upon such inspection and acceptance, the title as to those cars passed to the defendant company.
There is no claim that the remainder of the cars were not finished in the same manner as the first lot inspected by Lawless. As to these, the title certainly passed to the defendant when they were put
on the cars at Pullman Junction to be for. warded, if it did not pass before and as each lot was completed under the order to make them like those that had been personally inspected and accepted at the works of the plaintiff. Halliday V. Hamilton, 11 Wall. 560, 564, and authorities cited; The Mary and Susan, 1 Wheat. 25, 35; Stock v. Inglis, 12 Q. B. Div. 564.
To what extent was the defendant conclud. ed by the actual inspection and acceptance of the first lot of cars, and of the acceptance, in advance of their completion, of the remaining cars when finished or constructed in the same way?
The court below found that the cars could not be operated successfully with the brakes that were put upon them by the plaintiff, and that this fact was not apparent nor discoverable upon any reasonable inspection at the place of manufacture, and could not be discovered until after a practical test upon the road.
The contention, therefore, of the defendant, is that the plaintiff, having knowledge that the cars were to be used on the defendant's road, impliedly warranted that the brakes placed on them would be sufficient for the purposes for which they were designed. The plaintiff insists that the provision in the contract for inspection and acceptance of the cars at the place of manufacture is inconsistent with any idea of implied* warranty upon its part of the sufficiency of the brakes to meet the peculiar difficulties on defendant's road arising from curves and grades; especially as one of the defendant's engineers had experience in the construction and operation of street cars, and was at least as well informed upon that subject as the plaintiff's officers could possibly have been.
If it be assumed that the plaintiff, notwith. standing the provision for inspection and acceptance of the cars before their delivery, impliedly warranted the sufliciency of any brakes placed by it on cars to be used on the defendant's road, and even if it be assumed that the defendant had the right, after title passed, to rescind the contract within a reasonable time after discovering the insufficiency of the brakes, the result for which the defendant contends will by no means follow.
The defendant became aware of insutficiency of the brakes as early as the 220 day of March, 1888, and notice of that fact was given to the plaintiff. The defendant did not then rescind the contract, nor intimate any purpose of so doing. It sought to know what remedy the plaintiff would suggest to meet the difficulty, and demanded that the plaintiff should make the brakes sufficient. It warned the plaintiff that, if it did not send a practical man to Kansas City to take charge of the necessary changes, such changes would be made by the defendant at the plaintiff's expense. The latter promptly replied that it would do what was necessary in order to make the brakes sufficient. But
what it did failed to accomplish the desired result. The outcome of the matter was the refusal of the defendant to pay for the cars "on account of the imperfect brakes and other serious objectionable features." Notice of the determination not to retain the cars or pay for them was not given by the plaintiff to the defendant until the 12th of May, 1888. We dismiss any consideration of the “other serious objectionable features" referred to, because we are not informed by the record that any such existed. On the contrary, the defendant stated that the defects in the cars, independently of the brakes, did not interfere with their operation. The case is then to be disposed of upon the basis that the cars, apart from the brakes, were in every substantial respect what*the contract contemplated, and that the only ground upon which the defendant placed its refusal to pay for them was the insufficiency of the brakes.
We are of opinion that the demand of the defendant that plaintiff make the brakes sutficient, in connection with its expressed willingness prior to its notice of May 12th (no intimation being previously given of any desire or purpose to rescind the contract) to approve the plaintiff's bill as soon as the brakes were made sufficient for use on its road, and the expressed willingness of the plaintiff, after notice from the defendant that the brakes were insufficient, to put them in proper condition (without claiming that it was under no legal obligation to incur expense to tbat end), so far cbanged the relation of the parties to each other that the defendant lost the right, if it had such right, to rescind the contract and return the cars; and the plaintiff must be held to have admitted or recognized its obligation to put the brakes in such condition that they would be adequate for use on the defendant's road.
Wbile it must be taken upon the record before us that the brakes in question were entirely useless for the defendant's road, it is not specifically found, nor do the facts found justify the conclusion, that other brakes could not have been supplied for use on the cars constructed by the defendant. If, at trilling expense or without unreasonable exertions, the defendant could have supplied the cars in question with other brakes that were sufficient, the utmost that, under all the circunstances, it could claim in reduction of the ainount it agreed to pay for the cars, would be the reasonable cost of obtaining new brakes adapted for use on such cars. Manufacturing Co. v. Phelps, 130 U. S. 520, 527, 9 Sup. Ct. 001; Miller v. Mariner's Church, 7 Greenl. 51; Davis v. Fish, 1 G. Greene, 407; Sedgw. Dam. (6th Ed.) 106, 107.
It is found that the defendant operated upon its road combination cars purchased from another company, of a similar character with those constructed by the plaintiff, weighing about 600 pounds less, and used a brake of a different pattern, costing from $75 to $100. li* may well be assumed from the findings
that the cars in question can be successfully operated with proper brakes costing not more than the last-named sum. If brakes ade quate for use on the cars constructed by the plaintif could not be obtained for that amount, that fact is not shown. The ends of justice will be met by a judgment in favor of the plaintifr for the contract price of the cars constructed by it, and now in the possession of the defendant, lessened by the sum of $2,500, the amount which we must assume, under the tindings, it would cost the defendant to replace the brakes furnished by plaintiff with other brakes sufficient for the cars in question.
The plaintiff included in its petition claims for different sums of money, aggregating $4,219.70, which it claimed to have been expended for the use of the defendant in connection with the contract for building the cars, But the allegations in respect to those claims are traversed by the answer, and there is no finding in reference to them. Indeed, no finding in respect to them was asked. The judgment cannot therefore embrace them. We can only direct such judg. ment as is authorized by the facts specially found by the court below. Rev. St. $ 701; Ft. Scott v. Hickman, 112 U. S. 150, 164, 5 Sup. Ct. 56, and authorities cited.
The judgment is reversed, with directions to enter judgment in favor of the plaintiff for the sum of $47,500, with interest thereon from the 30th day of March, 1888, at the rate allowed by the laws of Illinois.
Mr. Justice BREWER took no part in the consideration or decision of this case.
(157 U. S. 1) BATE REFRIGERATING CO. 7. SULZ
BERGER et al.
CONSTRUCTION OF STATUTES. 1. An invention for which a foreign patent was granted between the date of filing the American application and the date of the issuance of the American patent, must be held to have been "previously patented,” within the meaning of Rev. St. § 4887, which makes ad American patent for an invention "previously patented in a foreign country' expire at the same time with the foreign patent. 56 Fed. 713, affirmed.
2. The construction of a statute concern. ing patents for inventions cannot be regarded as conclusively settled until it has been adjudicated by the highest judicial authority which can pass upon it, even though the practice of the patent office and the decisions of the lower courts have concurred for many years. But if, on applying to the statute the established rules of construe tion, and looking at it in the light of previous legislation, there be still reasonable ground for adopting either one of two constructions, the supreme court may well adopt that one which is in harmony with such previous practice and deci. sions, especially if there is reason to suppose that large interests have grown up under that come