Mr. Eanes, before proceeding to open the case, drew attention to a clerical error in the tition, whereby the amount paid by plaintiff defendants under the contract for work done was said to be $3,900, instead of Tls. 3,900. He asked also that it should be noted that such of the defendants as were not American citizens submitted to the jurisdiction of the Court, Defendants' Counsel assented on both matters.
Mr. Cantos would read the pleadings, which Fisputo, 0 far she knew them, a tolerably cleat idea of the matters in
he following is an abstract of the Petition and Answer The Petition set forth that the plaintiffs, agents for the British steamer Yangtsze, entered into a contract with defendants, a firm of engineers and machinists, whereby for Tls. 3,900 the Intter agreed to execute certain alterations upon that steamer, and to finish one complete outer length of shafting tobe of the best hammered scrap iron,' the whole to be completed in a proper and work-maylike manner." Soon after the work was done and paid for, it was discovered that the ting was not of the best acrab hammered iron," but iron of a very inferior quality; that it was not made in a proper and workmanlike manner, and that in consequence of the defects and imperfections in it, it became necessary to dock the vessel, remove the said shafting, and substitute another piece. On this account the plaintiffs claimed damages to the amount of $13,200, with costs of suit, &c.
The Account added to the Petition stated the cost of new screw shafting supply the Hongkong and Whampoa, Bock ab ess 60 days demurrage, at $200 per $13,200 Defendants, in their Answer, admitted' the contract and its execution by them, but denied that the shafting was of an inferior quality to the best hammered iron, or that it was made otherwise than in a proper and workmanlike manner. They affirmed the contrary, and that whether it was or was not, the plaintifis' surveyors examined the shafting while it was being prepared and fitted, and were entirely satisfied with it, and with the work of the defendants, andthe plaintiffs accepted the shafting'and workmanship. That it defects existed they were such as could not be known to the defendants (who as plaintiffs well knew were not the manufacturers) and were defects for which they were not liable. The question of the amount of loss defendants left to proof, but denied their liability, and prayed generally that the petition be dismissed with costs, &c.
Having read these, Mr. Eases said the only points in dispute seemed to be, first whether the shaft was perfect or imperfect second, if it was imperfect, were the defendants liable? He presumed the fact that the shaft was imperfect would not be disputed.
Counsel for defendants did not deny that the shaft was imperfect.
Mr. Eaatss said the ease then resolved into a question of the defendants' liability at law for that imperfection, and of evidence as to the amount of the damage sustained by plaintiffs. He would not weary the Court by travelling over unnecessary ground, but he presumed he might appear to do so to some extent. Plaintiffs claimed to make defendants liable on two grounds—one, the general warranty implied by law; the other express undertaking to fulfil their contract ina and workmanlike manner. The Court would see that no express warrant was set up in the petition, but the reason of this was that in this Court the Practice as to pleadings differred from the practice at Home, in so far as here they were sworn to, while at Home they were not; and whatever his opinion of such a contract as the one in question, he should hesitate very much to advise a client of his to come to that Court and swear on the pleadings that defendants warranted the shaft to be this, that, and the other. the facts would not be taken fo show an There were really no cases in England where
implied warranty. In cases of manufacture he did not doubt there would be liability, and defendants here were substantially manu facturers; it was in the line of their bu: ness to manufacture shafts. Whether they could do it or not he did not know, but they were supposed to be familiar with such work. On reading the contract, it would appear as if they expected to be regarded as the manufacturers; they say while the shaft is being made." He believed one point tobe made by Counsel on the other side was that the shaft was not to be "made" by defendants but this was one of those cases where he was a little nervous, because he did not see where the defence Iay—he was sure his friends would set up something ingenious. However, where a manufacturer undertook to furnish certain manufacture, he was bound to supply a proper article, whether he, made it him, self or not. As to this implied warranty of manufacturers, quasi-manufacturers, or selers, Mr, Eames cited kent 678, note; 2 Stephens Commentaries 70-71; Chitty on Contracts 475; Addison on Contracts 212-213; Jones v. Bright, 5 Bingham 533; Brown v. Eadgingtoo, 2 Manning and Granger 279; Jones v. Just, 37L. J.Q. B. 89; Parsons v. Sexton 4C. B. 899; Laing v. Fidgeon, 6 Taunton, 108; Mody' v. Gregson, 38 'L. J. R. ch. 12; 2 Kent, 662-666 and notea. From these authorities, which for convenience we place together, Mr. Eames argued that where an article was a product of nature, there was no implied warranty, but the distinction arose between such an article and one that' was manufactured, and which somebody was bound to manufacture ly, and that if na article in sold for particular purpose,, the soller impliedly undertakes, where there is no express warranty, that it shall be fit for its purpose. In the case of Brown v. Edgingtou, which was concerning a rope for a crane, the Protarers, were held responsible as giving an ple who furnished it, though not the manu-
implied warranty that it should be good and tuficient. He assumed that the ground of defence would be that there was a sale of a specific article which he denied; be be-Leved the fact' was that the shaft' was not manufactured by defendants, though the contract he had read stipulated that they were to "make" it. But even if it was a sale, there was no inspection, The cases he had cited also laid down that inspection, even where opportunity was given for that, did not always absolve the furnisher or manufacturer of an ide when it was not equal to the purpose required of it, and when defects existed which, were not outwardly apparent. In the great shirting case of Mody v. Gregson (mentioned above) the purchaser inspected a sample, and the goods were up to sample, but ingredients were used not apparent to the purchaser on inspection, and "diminishing th marketable value of the article, ani manufacturer lost his case. The authorities laid down that an inspection, to bind a purchaser, must be an inspection of the whole. In this case it was impossible that anything like an inspection of the bulk could have j taken place; it might as well be said that if man looked outside a bale of shirtings or a case of any other goods he could tell what was inside, In the case of Jones v. Just, which reviewed the whole subject and went over all the other cases, the parties were ignorant of the condition of the article, hemp, Which one sold and the other bought, but it was held that the vendor gave an implied warranty, and that this was always the case where a buyer has to trast to the judgment of the manufacturer or dealer and hot to his own, Plaintiffs did not charge the defendants with any misconduet—no doubt they were equally innocent in the matter of the flaw which disclosed itself, with the plaintiff, Nor was there presumption or pretence of any fraud, but plaintiffs said that defendants agreed, and were bound, to furnish a good and proper shaft, and, next, to do the work in a proper and workmanlike manner. The contract, too, must have contemplated their making a shaft, for time was allowed, and they were bound tomake it or have it made properly. They say—we think it will take twenty-one working days to complete the work, but we do not bind ourselves as to time. The whole was to be completed in a proper and workmanlike manner, and to satisfaction of the surveyors." What that last clause meant he did not for no surveyor could tell by looking at the shaft how it was made, Mr. Eames ended his remarks by handing in two survey reports by the engineers of LIH. M. S, HU: and Dwarf. The form of that by the engineer of the Duwurf was taken exception to, and Mr. Eames called him as his first witness.
Joux F. Coowns, sworn, stated—I am en-inoer of H.M.S. Dwarf. 'I surveyed yester-lay a broken shaft by request of Messrs, Siemssen & Ca. I went to the office at Hunt's Wharf and asked to see it; I was there shown by a gentleman from tie office, and afterwards went with the engineer of the Yangtsze, from the outside, I could not tell, everything faras its material is concerned, judging
was so rusty. At the same time, have no hesitation whatever in saying that there must have been in the centre part. of the caused through is ing longitudinally from 4 to 5 inches. opening. is about " quarter of an inch, by about 3 inches. I could not say how much of the shaft was scrap iron, The flaw was about two inches from the centre. I did not measure the shaft, but should think its diameter about 8 to 10 inch Cross-examined by Mr. Ropixsox—That flaw might have existed while the shaft was in the rough, before being turned, without di covery, and have continued undiscovered whil the shaft was being turned. In speaking of "welding," I assume that the shaft must have been hammered iron—whether scrap iron I don't know.
J.P. Ronenrs, sworn, ted—I surveyed the' ship generally whil the repairs were going on, not the shaft specially. did 90 on half of Messrs. Siemssen & Ca. It is so Jong ago that I have forgotten what my report 's, but it was to see that the ship was ina seaworthy condition, I suppose. (Mr. Eames read the witness's report, dated 16th October, 1873.) I was not special surveyor with regard to the shaft, but to see that it was good to the best of my knowledge. I could not tell how it in Where work has been ordered by a surveyor, itis the ordinary course to have a survey to see that it is done, as was the case here.
Cross-exaniined by Mr. Watsewntonr—I had no particular instructions except to that the work was being done properly, think it probable that I went down to the ship every day while she was in dock. 1 went into the machine shop and saw the shaft in the lathe; I saw it when it was fitted in the ship. I made no objection at any time to the way the shaft was being mad I saw the engineer of the Yangtsze sometime" when I went down, not specially in connec: tion with my surveying however. I could tell generally whether iron is good or bad, and 1 saw nothing wrong with this. By examin: ation, I could have told if it was cast-iron, I did not examine, but I believed it was hammered iron; it is not usual to put cast-iron shafts in a steamer, Joux Ecus, sworn, stated—I am chief engineer of the Yangtsze, and was in her when Farnham & Ca. atin anew shaft. She made two or three, think three, round trips,
Text read from the printed page and cleaned; old type leaves the occasional error.