ed, the jury should consider whether the maLOUIS ECKELS & SONS ICE MFG. CO. v. chine was operated according to instructions.

[Ed. Note.-For other cases, see Sales, Cent. [Ed. Note.-For other cases, see Evidence, Dig. §§ 817-823; Dec. Dig. § 288.*] Cent. Dig. 88 2066-2082, 2084; Dec. Dig. 10. SALES (§ 446*) - WARRANTIES - INSTRUC448.*]

In an action for the purchase price of a device to increase boiler capacity and save coal, the question whether the defendant had made a sufficient test held, under the evidence, forly Sappington and Charles G. Baldwin, both the jury. of Baltimore, for appellee.

[Ed. Note.--For other cases, see Bills and Notes, Cent. Dig. §§ 1652-1662; Dec. Dig. §ufacture of ice; and the plaintiff is a cor493.*]

8. SALES (§ 282*)-WARRANTIES-CONDITIONS. Where an express condition of a guarantee was that a machine should be operated accordThe declaration contains the common moning to instructions furnished by the seller, in determining whether the guarantee was fulfill- ey counts, and two special counts, one upon

a promissory note dated March 17, 1910, for | fendant showed the consideration of the $820, made by the defendant, and payable to notes to be the installation of the plaintiff's the order of the plaintiff on August 17, 1910; device under the contract mentioned, which and the other upon another promissory note it produced and put in evidence. Here the of the same date for $832, made by the de- plaintiff rested. fendant, and payable to the order of the plaintiff on November 17, 1910. The pleas were “never indebted as alleged,” and “never promised as alleged,” upon which issue was joined. These two notes represented the contract price, with interest added, of two Cornell Patent Economizers and Smoke Consumers with which the plaintiff had equip ped two of the boilers of the defendant's ice plant, of 100 rated horse power each, under the terms of a written contract between the parties, made August 23, 1909. At the trial, the plaintiff relied on the promissory notes, and the defendant set up a total failure of consideration.

[1] Frederick W. Eckels, the president and manager of the defendant, testified that some time in August, 1909, E. B. Cornell of the plaintiff company called on him about purchasing this device, and "told us he would guarantee to save us not less than 15 per cent. and possibly from 30 to 35-" Here counsel for plaintiff interposed, saying, "We do not object to 15 per cent. because that is in the terms of the contract, but further than that we object." The answer was not completed, and the witness was then asked, "That is 15 per cent. of what?" to which question the plaintiff objected and the court sustained the objection. This is the ground of the first exception.

As this conversation referred to antedated the contract, it is obvious that this was an attempt, as expressed in Warren Glass Co. v. Keystone Co., 65 Md. 547, 5 Atl. 253, "to supplant an agreement in writing by parol

ness in the terms of this guarantee requiring explanation by parol testimony or extrinsic evidence, as in the cases cited by the appellant. The increase guaranteed was plainly stated to be "increase in boiler capacity, when said boilers are run to their full rated capacity in accordance with our instructions," and the rate of increase was to be "not less than 15 per cent." To permit the defendant to state either in what respect saving was to be effected or to what extent, when the contract supplied the plain unam

The contract contained the following four guarantees on the part of the plaintiff: "(A) To fulfill all conditions imposed by local laws and ordinances, governing the use of apparatus and processes for the prevention of smoke, that may be in force within the territory in which this installation is made. (B) | testimony." There is no ambiguity or vagueTo effect a saving of not less than 15 per cent. or a proportional increase, in boiler capacity, when said boilers are run to their full rated capacity, and in accordance with our instructions; it being understood that any saving effected by the use of cheaper grade of fuel is to be accounted as part of same; otherwise the guaranteed saving is to be made by comparison with the same kind and grade of fuel. (C) To remove the apparatus free of cost to the purchaser at the expiration of 30 days' trial, if the guaranteed efficiency has not been demonstrated, pro-biguous answer to both these inquiries, would vided that the Cornell Economizer Company shall first have the right to personally conduct a United States Standard Blow-Off Test, without expense to it, before being required to remove the apparatus. (D) To replace all parts of apparatus that may be found defective in material or workmanship, during the term of one year from date of installation, provided that such defects shall not be due to improper use while in possession of the purchaser."

have been plain error, and the ruling was therefore correct. The second and third exceptions may be considered together.

[2] Edward H. Davis testified that he was defendant's night engineer from September 7, 1909, until January 1, 1910, and returned to its service as chief engineer on May 21, 1910, which position he held when testifying. He gave his experience in engineering, and described in detail the construction and operation of the device. He said that it increased the consumption of coal on one boiler half a ton in 12 hours, and gave no increase of useful steam; that he made no test up to the

The contract price was $1,600; "payment to be made by notes due May 1, 1910, and August 1, 1910, to be dated 30 days after installation of device, with interest added." | time then referred to, but told Mr. F. W. The device was installed in the latter part Eckels the result of his observation; that a of September, or the early part of October, little later (May 31, 1910) he made an exact 1909, under the plaintiff's instructions. The test, and found that he used as much coal only breach complained of was under guar- under the 100 horse power boiler, with that antee B, the defendant claiming that no sav- device, as he did under a 125 horse power ing whatever had been effected by the use of boiler in use in the plant, without that dethe device. At the trial, the plaintiff proved vice, and that he communicated to Mr. Eckels the execution and delivery of the two notes all the details and result of the test thus described in the narr., and that nothing had made; that the result was that he was burn, been paid on either, and on cross-examina- ing 1,100 pounds more of coal in 12 hours untion of the witness the treasurer of the plain-der the 100 horse power boiler than under tiff, by whom the notes were proved, the de- the 125 horse power boiler, and getting less

horse power out of it; that the 100 horse | one in question, whether he would adhere power boiler, internally and externally, was to the opinion he had expressed. He replied as clean as man could make it, and the test that he would. Thereupon, upon re-examilasted six or seven days; and that they nation, defendant's counsel asked to have were using the same coal on all three boilers, the magazine, which plaintiff's counsel reand they had no trouble about the burning | fused, saying it had not been offered in eviof the coal. He also testified that there was constant accumulation of dirt around the retorts through which the steam was caused to pass, and which were a special feature of the device and that this accumulation of dirt impaired the efficiency of the retorts, and caused increased consumption of coal; that the retorts could not be cleaned while the boilers were running; that he informed Mr. Eckels of all these facts; and that with the defendant's consent he took the retorts out and burned less coal than with them, and got practically the same evaporation.

Mr. F. W. Eckels testified at length, describing the device and its operation, and said they were using the same grade of coal, at first, on all the boilers, but later got a better grade, the best they could get, but got no better results. During his testimony, defendant's counsel said he wished to show that complaints were made by the engineer to defendants "about the amount of coal used," and asked the witness, "Did you receive complaints about the coal being used from the engineer who was on the stand?" and, the court sustaining the plaintiff's objection to this question, the second exception was taken. He was then asked, "Did you receive complaints, from the engineer who was on the stand, about the retorts getting dirty and being clogged with dirt?" and, the plaintiff's objection thereto being sustained, the third exception was taken.

dence, and the court refused to require plaintiff's counsel to produce it. This constitutes the fourth exception. "All the weight of authority is against the admission of scientific books in evidence" (8 Enc. Pl. & Pr. 768; 9 Amer. & Eng. Enc. Law [2d Ed.] p. 887); and in this state it was held in the leading case of Davis v. State, 38 Md. 15, that: "Medical books are not admissible in evidence, either for the purpose of sustaining or contradicting the opinion of the witness." But it is generally held that in cross-examination questions may be based upon the contents thereof, or extracts therefrom, to test the value of the opinion of the witness (8 Enc. Pl. & Pr. 768); and such is the practice in this state. It was under this practice that Dr. Penniman was asked the question whether, if that magazine stated that steam could be decomposed in a device such as the Cornell Economizer, his contrary opinion would be affected thereby. There was no objection made to that question, and the exception taken does not involve the correctness either of the above rule or its exception above stated. It presents simply a question of the power of the court to compel the cross-examining counsel to produce the magazine in question, and to submit it to his opponent for inspection and use in his own re-examination of the witness. Upon that question we have been referred to no adjudication. The appellant quotes Mr. Wigmore, vol. 3, § 1861, to the effect "that, where a party, having a document at the trial, uses it for any evidential purpose, fairness requires him to submit it for the opponent's inspection, even though the former has not technically and finally put it in evidence."

It is sometimes a controverted question whether certain things were said, irrespective of whether what was said is true or untrue; and if, in this case, evidence had not been given previously that complaints were made, and the nature of these complaints, it would have been proper to ask the questions The question, however, is not one of fairabove stated. But both Davis and Eckelsness or liberality on the part of counsel, but had already testified both to the fact and character of the complaints made; and the defendant could not be injured by refusing a mere repetition of the fact that complaints had been made. If it could be held technically an error to exclude these questions, it was clearly not a harmful error.

[3] Dr. W. B. D. Penniman, having qualified as an expert in the use of steam and in boiler tests as to consumption of coal and efficiency of steam, testified that this device is not novel, but is well known to him, and that it was impossible by it to effect the saving claimed for it, or any saving at all. On cross-examination he was asked if he knew Powers Magazine which counsel then held in his hand, and said that he did. He was then asked if that magazine stated steam

of power on the part of the court. We think, moreover, that the language of Mr. Wigmore is applicable only to documents (or books) which would be admissible in evidence if offered. This is directly implied in the language of the extract which we have italicized. Otherwise documents or books, which are expressly declared to be inadmissible, would thus be made admissible. Nor do we think that this exception comes within the rule in sections 132 and 134 of Poe's Practice, referred to by the appellee, governing failures to produce papers upon due notice, where the only legal effect of nonproduction is to permit the party who has called for them to prove the contents by secondary evidence. Manifestly that rule can have no application to this exception, because the

It

which could by any possibility benefit the defendant. Indeed, the admission of the excluded portions would have been distinctly prejudicial to the defendant, since all those portions consist of statements by the writer,

timony given by the defendants. We think, therefore, there was no concurrence of injury with technical error in this ruling.

ment) are intrinsically inadmissible, and the court can have no power to compel a party or his counsel to produce and submit to inspection a scientific book, which, when produced and inspected, could not be admitted in evidence, or be used by a cross-examiner not under oath, and contradictory of the tesfor the restricted purpose above stated. was decided in a case cited on the appellant's brief (Boyle v. Boston El. R. R., 208 Mass. 41, 94 N. W. 247, 21 Ann. Cas. 1020) that one party cannot make a paper, otherwise incompetent as evidence, competent in his favor by calling for it and inspecting it on its being produced on his call. There was no error in the ruling on this exception.

This brings us to the prayers. The sole defense was failure to produce the guaranteed saving of 15 per cent. There was evidence tending to support this defense, and for that reason the plaintiff's first prayer, which asserted there was no evidence legally sufficient to establish any defense to said notes, and its second prayer, which asserted there was no evidence legally sufficient to show failure of consideration for the notes sued on, were both properly refused. The plaintiff's third, fourth, fifth, and sixth prayers were properly granted.

The third prayer involved the same principle which governed the ruling on the first exception, in refusing to allow Eckels to answer the question, "15 per cent. of what?" · Guarantee B stated in clear and unambigu

[4] The fifth exception was taken to the admission in evidence of a letter from plaintiff to defendant, dated January 5, 1910, in which plaintiff demanded the execution and delivery of the two notes stipulated for in the contract, and called defendant's attention to guarantee C, which provides for a Standard Blow-Off Test, at its expense, to prove that plaintiff was making a minimum saving of 15 per cent. in accordance with the contract, stating that it did not wish to put defendant to this expense if settlement could be made without such test. Plaintiff's coun-ous language just what was guaranteed. Its sel asked defendant's counsel if they had this letter, and they replied they had, but objected to its being offered; but the court overruled the objection, and the letter was produced and read by plaintiff's counsel to the jury, stating that it was for the purpose of showing that they had the right to demand this test; and the court instructed the jury that no other statements contained in the letter were evidence of the facts therein set forth.

Mr. Poe states in his work on Practice, c. 8, § 135, that where a paper is called for by one party, produced by the other party, and inspected by the party calling for it, it thereby becomes evidence for both parties. Mr. Greenleaf in section 563 states that such is the English rule, though he adds that in the American courts the rule on this subject is not uniform. That rule, however, has been recognized in this state in Morrison v. Whiteside, 17 Md. 459, 79 Am. Dec. 661. There was therefore no error in treating the letter as in evidence.

construction was for the court; and we think the construction given was the only reasonable one, and clearly intelligible to the minds of the jurors.

[6] The fourth prayer told the jury that, unless they found the test described by Davis was sufficiently accurate to enable them to find, with reasonable certainty, whether any saving had been effected, they should disregard it. The conditions of that test were of the most perfunctory character, and its sufficiency was a question for the jury. In Hawley Furnace Co. v. Hooper, 90 Md. 397, 45 Atl. 456, where a very similar guarantee was considered, it was declared to be the duty of the jury "to inquire whether the test actually made was sufficiently accurate to enable them to find, with reasonable certainty, whether there had been an actual saving, as required by the written contract."

[7] The fifth prayer instructed the jury that the burden of proof was on the defendant to show failure of consideration. This is the general doctrine (8 Cyc. 225) and the rule in this state. Ingersoll v. Martin, 58 Md. 67, 42 Am. Rep. 322.

[5] But the appellant contends that, even so, the whole letter was made evidence, and that it was error to exclude from the jury [8] The sixth prayer instructed the jury all the contents of the letter except that that, in determining whether the guarantee which referred to the right to a blow-off was fulfilled, they must consider whether test; and we are compelled to agree that the machines were operated according to the when an instrument is forced into the evi-instructions furnished by the plaintiff. This dence under this rule, and thus made evi- was an express condition of the guarantee, dence for both parties, the jury cannot be and a material question for the jury's conrestricted to the consideration of a part only, sideration. The defendant offered 11 prayunless it clearly appears that this restriction ers, all of which were refused; and, in lieu could work no injury to the exceptant. We thereof, the court, of its own motion, gave have carefully examined this letter, and we the following instruction: "The jury is can discover nothing in the restricted part instructed that the meaning of the guarantee

in clause B of the contract between the plain- In Adler v. Portner, which was a case of tiff and the defendant, which has been of- this character, the defendant, Alder, testified fered in evidence in this case, was that the "that he gave his notes in May, 1883, for plaintiff's patented device would effect a sav-machinery purchased with warranty in Seping of 15 per cent. either by lessening con- tember, 1882, because Portner was threatensumption of fuel or by increasing the boiler ing to sue him, and he did not want to be capacity; and if the jury shall find that un-sued. He wanted time to test the machine. der the said contract the plaintiff equipped He could find out whether the machine two of the defendant's boilers with the said would work or not by the time the first note device, and that for several months the two would mature (four months); and, if it boilers so equipped were fairly operated by would not work, he would not pay the notes." the defendant in accordance with the print- Judge Bryan, speaking for the court, said: ed instructions furnished by the plaintiff, "If there was a breach of warranty, he knew and while so operated failed to show any it at that time, or at least he had the most saving whatever, either in lessened consump- ample opportunity of ascertaining it. * tion of fuel or in increased boiler capacity, Some significance must be attributed to the and that thereupon the device was perma- giving of a note. In good faith it imports nently removed by the defendant from each that the maker will pay it at maturity. of said boilers, then the verdict of the jury We can give to the defendant's must be for the defendant." Upon compar- conduct no interpretation consistent with ing this instruction with the defendant's first, good faith, except that he had no purpose of fourth, and fifth prayers, it will be seen that refusing to pay these notes. This clearly the court's instruction covered all that was implied that he would make no objection to asked for in the designated prayers of the the amount claimed to be due as the purdefendant. chase money of the machines. After this, the defense arising from an alleged breach of warranty, or from any other cause, could not, in good faith, be set up in bar of a suit on this account."

* *

[10] The defendant's sixth, seventh, and eighth prayers were properly rejected, as each of them was based upon matters not within the defendant's guarantee, and each of them directed an absolute verdict for defendant. The eighth prayer, moreover, required a verdict for defendant, if the jury found that the appliance "was not a practical appliance," which would have given them a free hand to find as they pleased.

The defendant's ninth prayer asked that the jury be instructed that the giving of the notes in this case was not a waiver of the guarantee, and that the burden of proof was upon the plaintiff to show that the device fulfilled the guarantee. From what we have said in passing upon the plaintiff's fifth

[9] The defendant's third prayer, declaring that the giving of the note in this case did not constitute a waiver of the guarantee in clause B of the contract, was properly rejected. The evidence showed that the device was installed in September or early in October; that the defendant told certain engineers, who inspected its plant some time in November, that the consumption of coal had been reduced thereby from 11 to 7 tons of coal per day, and that as they had no storage facilities, and the coal was hauled in carts practically as needed, it was easy to determine the saving; that the device was not defective when the notes were given five months after installation; that there was never any trouble, except the removal of dirt which accumulated around the retorts; that, when the notes were sent for execution, defendant said they had consulted their engineer "and found the device was in good working shape"; that the only objection | prayer and on the defendant's third prayer, made to the execution of the notes then sent was that they bore date 30 days after installment, as stipulated in the contract, while defendant claimed they should bear date from the time when they determined the device was in good working shape, and the notes were so changed, thereby abating the interest on said notes from November 1st to March 17th; that the notes were then executed and delivered; that no complaint was thereafter made until the letter of April 23d "that some dirt had been blown out of the stack"; and that after that letter defendant had no communication with the plaintiff. These facts bring this case distinctly within the rule announced in Adler v. Portner Brewing Co., 65 Md. 27, 2 Atl. 918, and so emphatically approved in Hinchman

this prayer was properly rejected.

[11] Everything that was properly asked for in the defendant's tenth prayer was embraced in the court's instruction; and the tenth prayer, moreover, was obnoxious, because it allowed the jury to speculate as to "unusual conditions, such as extreme draft and heat, which, if continued, would destroy the boilers."

[12] The defendant's eleventh prayer was based upon the theory that the notes were given upon Mr. Cornell's statement that defendant would not have to pay the notes when due if the appliance did not do all it was guaranteed to do. This statement was denied by Cornell in rebuttal; but, assuming it to have been made, it appears from the testimony of F. W. Eckels that the notes