is set out in the 'declaratioh to sMw a right of action in favor of plaintiffs oDlthese honds. The demurrer is overruled, with leave for defeDdant to plead within one week, if it elects so to do·
.CHANDLER and another v. THOMPSON and another.
w: .D. North
Oarolina. November Term, 1886.)
In an action for the pric;e of saw-mill machinery manufactured and sold under a written contract calling for an engine of certain horse-power, and an express warranty that the machinery would do good work, it cannot be shown, on the part of the defendants, that plaintiffs' agent fraudulently represented that the machinery which they proposed to buy was of the character, and had the capacity,. to do their work. A machinist may testify, as an expert, whether the defective work and condition of a steam saw-mill, set up and afterwards examined by him, is due to defective construction, or want of skill in the management of it.
OF MACHINERY-WRITTEN CONTRACT-EvIDEN:CE-AGENCY.
NEW TRIAL-MOTION FOR-NECESSITY OF BILL OF EXCEPTIONS.
Upon a motion for a new trial in a circuit court of the United States, where the amount in controversy is not sufficient to admit of a writ of error to the supreme court, a bill of exceptions is not essential, in order to avail of exceptions taken at the trial. The recollection of the court may be aided by affidavits and the briefs of counsel.
4. SAME-JURORS' AFFIDAVITS.
Upon a motion for a new trial, jurors will not be allowed. to explain the grounds of their verdict. A new trial will not be granted on the ground of newly-discovered evidence, if the evidence relied on is merely cumulative, and if the witness apparently might have been produced at the first trial.
Remarks of counsel in the course of argument to the jury, claimed to be improper, should be objected to at the time, and the interposition of the court invoked, in order to render such misconduct available upon motion for a new trial.
Action for the price of machinery sold. Verdict for plaintiffs. fendants moved for a new trial. Davidson & Martin and J. H. Merrimon, for defendants. Shuford & Jones, for plaintiffs.
DICK, J. This case was tried before me at Asheville at the regular term of the court, in May, 1886, and judgment was rendered on a verdict in favor of the plaintiffs. A motion was made for a new trial at said term, and was continued for argument and the preparation of briefs by counsel. Exceptions to the rulings of the court were taken by the counsel of the defendants during the trial, but were not formally reduced to writing, and presented in the court for signing. As the amount in controversy in this action is not sufficient to entitle the defendants to a writ of
error to the supreme court, to review the actions and rulings of this court, a regular bill of exceptions was unnecessary, and is not strictly essential, on a motion for a new trial, as the recollections of the court may be aided by affidavits and the briefs of counsel. Written and signed exceptions would be of service on this motion, as the counsel of the parties do not, in some respects, concur in their recollections of the proceedings, and the court does not clearly and distinctly remember all the details of the trial. I have a strong impression as to the decided preponderance of the testimony in favor of the plaintiffs, and the justness of the verdict. As the counsel of defendants, in their arguments and elaborate brief, have manifested such earnest confidence in the correctness of their legal propositions, I have considered their motion with some degree of care, upon their statement of exceptions taken on the trial. I have not deemed it necessary to refer to the statements of the recollection of the counsel of the plaintiffs, and decide questions of variance in the matters in dispute. Before referring specially to the arguments and the authorities cited by the counsel of the parties, I will state some general principles of law involved in the controversy, as announced by text writers and sustained by decided cases. Where a witness is offered as an expert, for the purpose of giving information and opinions to the jury to aid them in their determination of questions of fact, the court, by means of a preliminary examination, must first determine, as a question of fact, the qualifications of the witness as an expert. The proper test for the admissibility of such testimony is whether the witness offered as an expert has any peculiar knowledge or experience, not common to mankind, which renders his opinions founded on such knowledge or experience any aid to the court or jury in correctly determining the questions at issue. When such witness is adjudged to be an expert, p.e may be allowed to testify on questions of science or skill in any art or trade in which he is instructed by study or experience. Every business or employment requiring peculiar knowledge or experience, and which has a particular class of persons devoted to its pursuit, is an art or trade; and any person who, by study or experience, has acquired this peculiar knowledge and practical skill, may be allowed to give in evidence his opinions upon such matters of technical knowledge and skill, within the limits of his business, to enlighten the minds of a jury where they have to determine such matters· in a pending trial. An expert cannot be properly allowed to express an opinion, on the whole evidence, as to the general merits of a case, or as to the amount ofdamages that ought to be assessed in a trial, as these are questions exclusively for a jury to determine. 'Vhen all expert may properly express an opinion, he does not decide the questions in issue; he only aids the jury in arriving at correct conclusions, and they must determine the questions of fact about which the opinion of the expert was given. The credibility of such testimony may be tested by the rules of evidence applicable to other witnesses, and its value greatly depends upon the knowledge, experience, opportunity, and capacity of the witness, and the soundness of the reasons upon
which his. opinions are founded·. The only purpose and effect of such testimony is to enlighten the minds of a jury upon subjects upon which they have acquired no theoretic,al ·01' practical knowledge. A witness who has acquired knowledge in a particular art by long experience, can generally give a more intelligent, intelligible, and satisfactory opinion about his vocation than can be given by. scientific experts upon questions of science,. upon which opinions are often formed by mea,ns of theories, conjectures, and abstract reasonings. Upon subjects of general knowledge, and upon matters pertaining to the daily occurrences and the u/>ual business avocations of ordinary life, ajury is presumed to be familiar, and to need no aid from the opinions of a witness in making necessary and natural inferences and deductions from facts ascertained by them from the evidence offered. When such 8ubjectsand matters are to be investigated upon a trial, the rules of evidance as toexipert witnesses ar.e not applicable. But in a case like the one now before us, where they are required to consider the construction, quality, capacity, and proper operation of complicated machinery, they must be informed in some way upon the subject, as but few jurors are qualified to form correct conclusions as to an art with which they, are not familiar. ,:The reasonable audlegal way of obtaining such necessary information is the hearing of the opinions of witnesses who, by the usual methods of acquiring such knowledge .and skill, have made themselves capable, of forllling and expressingjntelligent and rational views upon· such subjects. In.this case the jury on the trial might have been able to decide that the saw-mill would not exert the full capacity of its power, and do good work, from the facts stated by the witnesses that the saw was warped, and the frame of the machinery was out of plumb, and }Vas operated by persons who had littleknowledge and skill in such business; but they would not have been able to determine from such facts the questions arising out of the express warranty as to the exact horse-power of the engine furnished by the plaintiffs, in alleged compliance with the terms oftheir engagement, and the reasonable and proper management covenanted by the defendants; ahd these were some of the materiaI questions in issue to be determined by the jury. A steam saw-mill is certainly a kind of machinery that requires peculiarknowledge and skill in its erection and operation, in order to exert and exercise the full capacity of its power. I think that I acted right on the trial of this case in allowing an experienced machinist, who had acquired information by actual observation and careful examination, to give his opinion in evidence to enlighten the minds of the jury as to the horse-power of the engine, and whether the saw-mill machinery was in such working order as to exert the full force of its power; and also upon the question as to what would be the effects and consequences that would result from operating the machinery when not properly adjusted, and unskillfully managed. I will now consider more particularly the exceptions of the defendant, as stated in the brief of their counsel. First exception:
CHANDLER V. THOMPSON.
"The controverted issue was whether the failure of the machinery to perform the work which it was expected by the defendants, and represented by the plaintiffs., to perform, was attributable to the fact that it was not of. the requisite capacity, (a 13 horse-power engine,) or defective construction. as insisted by the defendants; or to want of skill and care in its management, as insisted by the plaintiffs. With a view to show that the failure of the machinery was due to the carelessness Or want of skill on the part of the defendants. the plaintiffs introduced one Boyd, who had put down the mill as tbeir agent, and afterwards had been employed by the defendants to examine and reset it; and· were permitted, against defendants' objection, to put the question whether the defective work and condition of the mill was owing to dj:lfective construction, Qr want of skill or management on the part of ants.' 'fhe witness answered' that,'in his opinion. it was OWing to want of proper care and skill in the management.' The defendants excepted...· . The court, upon preliminary examination, had adjudged the witriess to be expert machinist. He had been employed in such :art and trade, both by plaintiffs and defendants, and had acquired (un knowledge as to the quality of the machinery, and its horse-powercapao;. ity. . He had adjusted and arranged the mill, it did' good work. The mill was subsequently erected at another place, and was putout of proper order by the unskillful arrangement andmanag'ement ofincotnworkmen. 'He also further testified petent .machinists, sawyers, that, by actual measurement, he was satisfied that the engine was oP3 horse-power capacity. The plaintiffs had sold the engine as of 13 horse. power, and had, in a printed express warranty, stipulated "that chinery aboye described .shall be well and properly manufactured,. of good material, and that. with proper management, it will perform well;" and the defendants, under their hands and seals, had accepted this warranty as apartofthe contract, and had allilo covenanted "to use the said machinery with reasonable care." . Thus it appears that proper management was an express stipulatioh in the mutuaLcontracts of the parties, and was one of the issues to be decided by the jury, who were incapable ofdetemdning this questioll of mechanical skill, and were enlightened, properly, by the' opinion of an intelligent and experienGed machinist, formed by his own observation and actual examination, and not from the testimony of other witnesses. Asthe value of such testimony was estimated by thejury, an<). was subject to all the tests of truth provided in the well-settled rules of evidence,it cannot, in any manner, be regarded as improperly influencing a determination of the general merits of the case. The jury decided the questions of fact by w )ighing the testimony of the expert witnesseS on both· sides of the controversy. . , The counsel of defendants, in support of their exception, cited several adjudged cases which I cannot conveniently obtain, and must, therefore, rely on the quotations stated in their brief. . The case of Wilson v. Reedy, 33 Minn. 503, 24 N. W. Rep; 191, seems to be an authority sustaining the views of the I do not conenr in the dl3cision, as I understand it frotilthe ·brief.I think· that,in lill cMes where questions of special mechanical· skill and
care are involved in a trial in court, a jury may be properly aided in determining such question by the opinion of an intelligent and practical mechanic, as he is better instrU<itedand qualified to form a correct and just opinion upon such qbestioris than an inexperienced jury. Transportation Line v. Hope, 95 U. S. 297. The other cited cases (Bua:tori, v. Somerset Potters' Works, 121 Mass. 446; Hopkins v. Indianapolis, etc., R. OJ., 78 Ill. 32; Koons v. St. Louis R. Co., 65 Mo. 592) do not appear to be in point, as they involved questions which were not within the technical limits of any science, art, or trade, and required no special skill or knowledge, but were matters of general observation or common experience, which a was competent to determine.' ' Second exception: UTile defendants proposed to show tllat, when they went to plaintiffs' agent (VanGilder) to informed him that they were not qualified to of the capacity and quality of machinery, having had then no experience In its manllgement. They explained to him particularly the kind of work they desired, to do, the 'character of the timber, and other circumstances material, and asked' him to recommend the machinery necessary; that. thereupon he did recommend' the machinery they afterwards purchased, and assured them that it was of the character. and had the capacity, to do their work; ,that defendants having confidence in plaintiffs' agent, and relying uponhis representations, made the pnrchase; and that those representatioqs, were false, were so known to be by the said agent, and were made with the'intent to deceive and induce the defendants to bUy. This testimony was: rejected. " .. The contractof sale was consurimiated by a c<mtract signed and sealed by the defendants, and contained various express stipulations on the part ofdefendants, and an express warranty olthe capacity and quality of machinery on the part of plaintiffs, which will be set forth iIi terms in a subsequent part of this opinio.n. This exception presents no difficulties requiring elaborate discussion, as the principles of law involved are well settled in text writers, and in Judicial decisions of the highest authority. In Bast v. Bank, 101 U. S.93, we find the lawthlls announced: "No principle of evidence is better settled at the common law than that, when persons put their contracts in writing, it is, in the absence of fraud, accident; or mistake, conclusively presumed that the whole engagement, and the extent and manner of their undertaking, was reduced to writing. When parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement, and we are not disposed to relax the rule. It has been found to be a wholesome one, and, now that parties are allowed to testify in their own behalf, the necessity of adhering strictly to it is all the more important." I need not refer to other authorities firmly establishing the familiar general rule that parol evidence of contemporary oral agreements, communications, or stipulations cannot be permitted to vary, qualify, or contradict, or add to, or subtract from, the absolute tArms of a written contract. This general rule is subject to some modifications, but no real exceptions, in courts of common law. I will refer ,to some of these
modifications for the purpose of showing that they are not applicable to the case now before us. Parol evidence of surrounding circumstances is admissible to show the subject-matter of the contract, when ambiguous or indefinite; but the express terms cannot be varied by proof of the negotiations and transactions out of which it grew, and the circumstances which surrounded its adoption. In construing the terms of a written contract, such evidence is allowable for the purpose of ascertaining the real intention of the parties, but no new obligation or duty can be imposed on a parly which is not warranted by a fair and reasonable construction of the wotds of the instrument. The general current of authorities shows that parol evidence is only admissible in courts of law to aid in the construction of written contracts, admitted or proved; to ascertain the subjectmatter; to show the real nature of the instrument; or to explain latent ambiguities or indefinite terms; or to give effect to general customs, when they do not contradict express stipulations; or when the original contract was verbal and entire, and a part only of it was reduced to writing. Parol evidence is permissible to show a subsequent agreement, on a new consideration, varying the terms of a written contract. The exceptions to the general rule as to the parol evidence that relate to fraud, mistake, or accident in a written contract usually arise in courts of equity, which have ample, elastic, and flexible forms and modes of procedure in administering full and adequate relief to suitors. Courts of equity will look beyond the terms of a written contract, and consider the whole transaction, and will hear parol evidence in the investigation of allegations as to matters of fraud which induced or affected the terms of the contract, if the person seeking relief has acted promptly and decidedly upon the discovery of fraud, and has not derived such benefits from the transaction as to prevent the parties from being placed in statu quO. Proof of fraud, in actions at law, is restricted to narrower limits; the alleged fraud must affect the execution of the instrument. In GeQrge v. Tate, 102 U. S. 564, we find the rule of evidence upon this subject clearly stated and sustained by cited authorities: "Proof offraudulent representations by Myers and· Green, beyond the recital in the bond, to induce its execution by the plaintiffs in error, was properly rejected. It is well settled that the only fraud permissible to be proved at law in these cases is fraud touching the execution of the instrument,such as misreading, etc. The evidence was properly rejected for another reason. Where a party reaps the benefit which the bond gives in such cases, and is called upon to respond, he is not permitted to repUdiate the obligation he has assumed." The rules and principles of law thus announced are applicable to the case now before us. The contract between the plaintiffs and defendants about the saw-mill is evidenced by a written and sealed instrument, containing mutual and dependent covenants, defining the rights, liabilities, and duties of the respective parties, and providing a specific remedy for any defects that might be discovered in the material, construction, and proper working of the engine and other machinery.
From the legal views of the' defendants' counsel, so clearly and confidently expressed in their brief, I suppose that they did not advert to the distinction, so well settled, between a civil action in our state courts, in which legal and equitable rights and remedies may be adjusted and determined in the same trial, and an action at law in the federal courts, in which the prinCiples, forms,and remedies of law and equity cannot be blended. Van Norden v. Morton, 99 U. S. 378. The third cause, assigned for a new trial is newly-discovered and material evidence, which by due diligence could not be ,procured on the trial,and, ifa new trial is granted, will certainly change the result. The counsel fOJ: defendants strenuously insists that new trials ought to be liberally gl1anted, "in furtherance of justice." Incrimil1alcases, when 'the, lifeor liberty of the citizen is involved, II. judge may properly exercise a liberal discretion in allowing a person convicted to have another opportunity of ,and defense, when there is'reasonable doubt as to guilt, or fairness in ,the first trial. But in civil cases, when the rights parties have once been determined after fulUnvestigation, by animpa'ftialjury, the discretion .of the judge should be a legal discretion,controlled by the principles and usages of law. Thestatllte conferring, jUl'iS!;liction upon the federal courts to grant new trials expressly such power should be exercised reasons for whieh new trialshav,ebeen usually granted in courts of law." This provision applies to jury trials, and is directory to the courts, to be governed by the r,ulesand principles of the common law. The courts of the common law have usually granted new trials when the verdict is against tbe weight of the evidence, or contrary to law, or when excessive or manifestly insufficient damages have been awarded j for the admission of illegal evidencEl, Or the rejection of competent evidence; or when a party has been deprived of evidence by accident, and without fault on his part, or is taken by surprise in a matter that he could not reasonably anticipate; for misdirection of the court upon material questions of law,or for serious irregularity in the trialjor misconduct of the jury; or unfair conduct of the prevailing party; or manifest injustice 11a,s, been done. Courts of law 4ave also granted new trials when the losing party .has discovered mate-rial evidence since the trial, alid satisfied·the court that he had used due diligence in preparing his case for trial; that the newly-discovered evidence will tend to prove a material fact which was hot directly in issue on the trial, or was not then known and investigated by proof, and will probably produce a different result. A losing party cannot properly be allowed a new trial for newly-discovered evidence which presents no new fact, but is merely cumulative in its nature, or when he has not exercised' preVious diligence in procuring it, when the means were within his power. Steph. PI. 95. . I have read, and carefullyconllidered, the allegations and statements of matters of met set forth in the affidavits of the defendants, and of N. W. Girdwood. The statements of Mr. Girdwood refer only to the horsepower capacity. of the engine,and are merely cumu,lative expert evidence. upon one of the main questions involved in the issues that were before
the jurY', "t1;POll which there 'Yasexpert testimony on both sides of the controversy. If a new trialahould be granted, the newly-discovered timony would be submitted to the jury for the purpose of rebutting or the testimony of the manufacturers of the' engine, and two otherintelligent and experienced machinists. The defendants have failed to satisfytne that they exercised due diligence in discovering and procuring on the trial the evidence now for the first time 'presented. The case was pending in court for more than two years, and from the pleadinge it ,appears that defendants were aware of the nature of the legal defense claimed by them under the contract of purchase, and they must have been advised ofthe Jdnd of evidence require4 to sustain their alleg!l:tions. Mr. Girdwood was a citizen of Asheville, the place where the machinery the action was was pU1:chlJ-sed" ll,nd where the court was held in pending. 'He saysin his affidavit that "he has lived: western North Carolina 16 yearf;l, and is familiar with the class oi engines sold in this section for saw-min purposes,and had experience in running saw-mills." A person so well known in the community, so highly experienced as a mll.chilHet, and so easily accessible,mighthave, been procured as liwit'ness on the trial bY' , , ' ,," ,,' ,I," " Complaint h;iinade 'on the part ord'efendan,ts that a,statementof one ortlla nounse}., ,ofiheplailltiffs in fiuanced,the verdi.ctof the:ju,ry. It is insiste<Hhat he argued with 1\1'uch force that the evidence showed that the engine was of 13 horse--power, "but that, if it'was that this was not tr?e, the plaintiffs 'WOlild surrender their judgment." No exception to those marks was made on the trial, the interference of the court was not invoked at the titne,and no special instructions on the matter were: asked when thecouItcbarged the jury. Hsuch statement was improper, exception ought to have been taken in apt time; ;and,now that it is called to the attention of the court for· the first time; it cannot avail as cause . for a new trial. Knightv. Ho:ughtalling, 85 N. C. 28... . The affidavits of two jurors have been filedpy fo;rth opinions. and views that influenced the verdict of the jury without averring any acts of misconduct. It is an old rule, and Well settled, th/l;t,on a motion for a new trial,ajury will not be allowed to explain the grounds of their verdict. The policy of. this rule is .so apparent that no. m.ent is necessary. 2 Tidd, Pro 817; Lestf/l' v.Goode,2. Murph. 37·. I havecarefuUy considered the'usual causes and reasonswi;lich,. hi1Ve influenced courts in granting new trials,. and find none that would authorize me to allow this motion ·of the defendants. .I fullyapprecinte the wiSdolO and justness of the principle of law tersely expressed in a familiar legal maxim, and so. often announced in judicial decisions, that the policy of the law is against second trials in the Same action, as it. is for the best interests orthe staUl that litigation should be ended. In conclusion, I will endeavor to state briefly my views, impressions, and recollections as to the general merits of this controversy, as developed on the trial; as sOlpe.degree of pUblic interest. The action was ·brought to recover the price of a 13 horse-power engine,
agreement, and the prompt payment of said notes at maturity by the makers 9f them, Messrs. Chandler & Ts)'lor warrant thJlt the machinery above described shall be well and properly manufactured, of good material, and that, :with proper management, it will perform well; and, if. the makers of said not.es are unaQle to make the' mac$i.nery operate well, then it shall be their duty to give written notice to the dealer or agent through whom they received it, and to Chandler & Taylor, and reasonable time allowed to remedy the defects; if any exist; and if they are not able to make it operate well, (the consignee rendering necessary and friendly assistance,) and the fault is i1tthe machine, then it may be returned to Chandler & Taylor, and they shall furnish another in its place. But;if the. parties to this order have failed to it perform aright through ignorance, or improper management, by either themselves, or by others connected them, then they shall PI\Y all necessary expenses incurred." '
and other I purchased and recei-ved from plaintiffs by defendants. The negotiations for the sale were conducted by the agent Of the plaintiffs with the defendallts I in Asheville, and, when agreed upon by the parties I the terms of the. contract were expressed in an instrument signed and sealed by the defendants, in the form required by the plaintiffs when an order was made on them to furnish the machinery they manufactured. In this instrument ordering the machinery the defendants agreed to pay for the articles ordered the sum of$l,600, in certain specified installments, and made other stipulations and agreements as to 'the title and'reasonable care of the property, until payment was fully made. In there was the following warranty on the part of the plaintiffs: ., .. Warranty. . consideration of the faithful performance of the above
. Under this contract the plaintiffs manufactured the machinery menand on or about the twentieth, of February, 1882, delivered the same, in good 'order, to the defendants, at Asheville, who accepted, and Mt'erwards used, the machinery in their business, up to the time of the trial of this case,in May, 1886. As the plaintiffs manufactured the machinery for a particular purpose, made known to them by the purchasers, the law would have implied a warranty on the part of the vend()rs, that the machinery wasHt and proper for such purpose, and free from latent defects. The express warranty which was received and accepted by the defendants contains the agreement of the parties as to the capacity and quality of the machinery, and the remedy for defects, and no warranty upon the same subject-matter can arise by implication of -law. The words employed in the covenant of warranty must receive a fair and rational meaning, in ascertaining the intention of the parties. It is the fault of the defendants, who knew the terms of warranty before the. purchase, and accepted the same, if it does not give them as effectual 'protection .8nd remedy as they desired. As a general rule, where there is a written express warranty, fairly made, and fairly and knowingly aeand the terms are clear and positive in their meaning, there is no liability beyond the provisions of the instrument, as the law pre'sumes that rational men understand their best interests, and know hoW' to take care of them.
The counsel for the plaintiffs insisted that the defendants could have no remedy in this action, by way of counter-claim, for damages sustained; but on the trial the warranty was regarded by the court and the counsel for the defendants as an ordinary express warranty for the quality of goods sold. When there is a breach of such a warranty, the buyer may bring his action at once, after receiving without returning the goods, and their actual value only will be estimated in assessing damages; or he may avail himself of a counter-claim by way of recoupment, in an action brought against him by the vendor for the price. If the purchaser, in a reasonable time after discovering a breach of warranty" returns the goods, the sale will be annulled, and he may successfully defend himself in an· action by the seller for the price. In no 'case can the, purchaser keep the' goods, if they have any value, and have the contract rt'Scinded, as rescission requires the entire contract to be avoided, and the parties placed in statu qv.o. Lym v. Bertram, 20 How. 149; Smeltzer v. White, 92 U. S. 395; Hurst v. Everett, 91 N. C. 399. Since I have had an opportunity of more carefully considering the terms of the contract between the plaintiffs and defendants, in relation to the machinery, I am strongly inclined to the opinion that the defendants were not entitled to their defense by way of counter-clainl in this action. The warranty constitutes a part of the contract, and the terms are so ex:pressed as to contain mutual and dependent covenants, and provide the remedy to be., soug1;J,t by the, defendants, should the machinery be defectiv,e, and fail to do ·good work, with careful and skillful maIlllgement. As the' remedy ,was expressly agreed upon by the parties, and 'as it ;seCured ,the against all fraud and injury, and its were not unjust or unreasonable, in construing the contract with, reference to the subject-matter, and in the light of surrounding circumstances, we way well presume that it was the intention of the parties that the means of relief provided for were to be the primary remedy, and the de· fendants were to have no other remedy, unless they first performed the <luties and obligations which they had assumed in their written covenant. The evidence on the trial tended to show that the defendants had not complied with their express covenant, and that the plaihtiffshad furpislled the machinery in good order, and were able, ready, and willing to perform all the obligations of their warranty.As the questions of law ·arising upon my present construction of the contract were not .cfully .argued before me, I will not express a decided opinioIl, upon the subject, but I am inclined to think that, even if there were defects in the capacity :and construction of the machinery, the defendants were not entitled to their ,counter-claim defense arid remedy, as the liability of the plaintiffs .cannot be extended beyond the express provisions of their coven.ant of warranty, whioh were accepted by the defendants' under their hands and .seals. It certainly would be no wrong or hardship on the ,defendants to require them to do what they, expressly covenanted to ao,be(ore they could have a remedy at law against the plaintiffs, who have not had the .oppurtunity of performing their obligations in the manner agreed upon ,by both parties in their joint instrument of contract. There is a well.
flettled and just rule of law that. the conduct of one party to a contract which prevents the other party from performing his part is an excuse for I will not further discuss this question, as the rights of thEi' plaintiffs involved in the issues presented by the pleadings have been :determhlledby a· fair and impartial trial. I· think. that a :deoided preponderance of the evidence showed that the failure'ofthe saw-mill to do good work was caused by the defendants not being willing to pay sufficient compensation to secure the services of experienced and ,oompetent engineers and workmen to operate machinery that required skillful. management. "For the consequences of mismanagement, inattention; and the want of the required skill in the working 'the plaintiffs are not, p.or does their contract in any manner make them, 'responsible"in this action., Tysonv. Ty8on, 92 N. C. 291. Motion for· new trial disallowed.
(OtreUft Oourt, .
Oo.v. McKENNA '8.nd others.
, The' procurement of workmen·who are erilrloyed upon terms as to . whioh are aust :and satisfaetory to quit work In·a body for the purpose of Indamage upon thf1employerby who are not in his employ, uil!il the accede to ohuch outsid.e persons, whIch he 'IS under no obhgation to grant, constItutes in law a malIcIOUS " andiIlee:al interference with the business, which is actionable. ,2. SAME-BOYQOTT-DA)1:AGES-MISPEMEANOR-PEN. CODE. N. Y. § 168. . . . Peclaring and attempting to enforce a boycott for the purpose of compelling an employer to pay such a rate of wages to his employes as the boycotters who are not in his employ might demand, are acts rendering- the boycotters liable in damages, and are also misdemeanors at common law as well as by . Pen. Code N.' Y. § 168.
8: ! SUrE-Ll\BORItRS'
associations designed to coerce workmen to become members of such.combinations .or associations, orto int,erfere with, obstruct, vex, or annoy them in or in obt'aining wqrk, because they are not members, or in order to induce them to become members; or designed to prevent employers from making a just discrimination in the rate of wages paid to the sl,tiHful and to the unskmfu\;tp' the diJigent and to tpe lazy; to the efficient and to'the inefficient; and all deslgned to interfere with the perfect freedom of employers in' 'the <proper management and control of their lawful business, or to jlictate in, iany particular upon which their businesssha,ll be conducted, by mes,l1S of threats of injur,vpr loss, by interference with. their property or traffic, 'or with their lawful 'employment of other .persons, or designed to abtidgeanjr I>f these rights;-'-atepro tanto illegal com. bina,ti.ona or furtheran,cEj;atsl1ch intentions ,by, !?Y 4,arnage, are actionable. .'
",,' . An' action to recover clarnagesfrorn rnose who have combined to do Suchan
injury..toa plaintiff'sbusinese, and the use of his property, is "an action an injury to property," withiii the meaning of section 549" subd. 2, Code ". 'P·roe. N, Y'iand order fo.r the arl'est ·of defen,dants.may be grmli'ed therelll.
'" ,SAME.,-ACTION-"INJURY TO PROC. N. Y. § 549, Su'lm.