#### Marsh *v.*Nordyke & Marmon Co.

Where mill-machinery is purchased, with a contract of guaranty that it shall produce a given quantity and quality of flour, defects in the machinery cannot be shown by evidence of the cost of repairs or additions put upon it by one who purchased the mill, with the machinery, from the defendant. Nor by the quality of the product after repairs had been made or after the party to whom the guaranty was made had parted with the mill.

Objections to the admission in evidence of depositions, because there is not appended to them a formal jurat, and because one of the interrogatories contained therein was not according to law, will not be considered, where the complainant has not complied with the rules of court, requiring exceptions to such defects to be taken in a certain time and manner.

Oct. 2, 1888.

Error, No. 1, Oct. T., 1888, to C. P. Westmoreland Co., to review a judgment on a verdict for the plaintiff in an issue to determine the validity of a judgment, wherein the Nordyke & Marmon Co. was plaintiff, and A. L. Marsh and John M. Marsh, trading as Marsh Bros., were defendants, at May T., 1884, No. 135. Green, J., absent.

The petition to open the judgment, filed April 26,1884, showed that judgment had been entered Feb. 20, 1884, on a bill single for $1,000, given for mill-machinery, and averred the following defence:

“ The said plaintiffs guaranteed to furnish machinery for said mill and erect the same of first-rate quality and first-class condition, of a capacity of fifty to sixty barrels every twenty-four hours ; owing to deficiencies in said machinery and materials, and in the fitting up of the same, the capacity of said mill will not exceed thirty-five barrels for every twenty-four hours ; the defects in the bolting machine and in the elevators and purifiers are a cause of almost constant complaint, annoyance, trouble and expense to the said defendant firm. Said firm agreed to furnish said mill with machinery, &c., and to set up the same so that the mill could be operated by what is known as a left-handed engine ; nevertheless, the machinery does not suit said engine, which is required to be operated and worked backwards to the damage and injury of the engine, and the annoyance, expense and trouble of the defendants. By the failure of said plaintiffs to perform and keep their covenants and agreements, the said defendants have been injured to the extent of one thousand* dollars.

“ The petitioner therefore prays that the said judgments be vacated and set aside as to the individual estate and property of the said A. L. Marsh and John M. Marsh, and that the judgments as to the said firm of Marsh Bros, be opened and the defendant allowed to defend, &c.

“The petitioner further avers that the said plaintiffs undertook and agreed to erect said machinery in two weeks, whereas, in truth and in fact, it took nine weeks to erect the same, to the damage of the defendants in the sum of seven hundred dollars for salaries, wages and expense, and not including the damage occasioned by the delay in operating the mill.

*496“ The petitioner therefore prays as hereinbefore prayed and for such other and further relief as to right and justice may seem meet.”

On July 6, 1885, the court “ ordered the within stated case on the issue docket, the plea of nil debet to be entered for defendant, and the defense confined to matters set forth in the petition.”

The contract for the purchase of the machinery contained the following: “ All material to be of the best quality in material and workmanship and fully guaranteed. You will furnish us plans and drawings after the best method known to you, with program for handling the material, fully equal to any on the same system of milling, and guarantee as good results in the quantity and quality of the products with skillful handling and with good merchantable grain. You will furnish us the services of a competent millwright to super? intend the placing of said work after your plan, and we will pay him for such service four dollars per day, and his board and traveling expenses.”

On the trial, when John M. Marsh was on the stand, the defendants offered to show by the witness that the pay-roll, during the time the machinery was being placed in the mill, amounted to $100 per week; that it took about nine weeks to complete what the plaintiff, by its agent, had represented would take but four weeks, and that, by reason of such misrepresentation, the defendant sustained a loss of not less than $500. This, for the purpose of setting off the loss thus incurred against the claim of the plaintiff in this suit.

To Which offer counsel for plaintiff objected, because the contract in writing, already in evidence, specified no time for the erection of the mill, and the witness had stated that that part of the conversation with the agent was after the contract was entered into and it could be no inducement for the signing of the contract. 2. The contract expressly provides that the machinery was to be placed in the mill at the expense of the defendants, and the offer is irrelevant and incompetent. Objection sustained, offer refused and exception.

Defendants’ counsel then proposed to prove by the witness on the stand that the plaintiffs, having entered into a contract to furnish a competent and skillful superintendent to erect the machinery in the defendants’ mill, made default in this condition of the contract and furnished an incompetent and unskillful superintendent, by reason of which default and incompetency, the defendants sustained a loss and damage of about five hundred dollars. This, for the purpose of setting off such damage against the claim of the plaintiff in this suit.

To which offer counsel for the plaintiff objected; because this item of defense was not averred in the petition for the opening of jüdgment. And, in the order of July 6, 1885, by which the judgment was opened, the defense was confined to matters set forth in the petition. The offer is therefore irrelevant and not in the issue. Objection sustained, offer refused and exception. [2]

*497Defendants’ counsel then proposed to prove, by David Orr, that he bought and used the product manufactured by the machinery of the plaintiffs in this case, and that such product was defective and not merchantable.

Objected to by plaintiffs’ counsel because it is irrelevant; 2d, because such testimony would be speculative, it cannot be introduced upon a trial of this kind. And, in addition, the defendants themselves have already testified that they introduced new machinery. It would be improper to show the product of their mill, after the new machinery had been introduced so as to charge the plaintiffs.

By the Court: This offer is refused unless it is intended to be shown that the flour thus purchased by the witness was during the ownership of the defendants, and while they were operating the mill.

Defendants’ counsel state that they are unable to comply with the condition imposed by the court, and request a direct ruling on the naked proposition without such condition.

By the Court: The offer, therefore, is refused and exception noted. [3]

Defendants’ counsel then proposed to prove, by Robert Boggs, that there had been expended in the repair of this mill, to bring it up to the capacity stipulated for, at the time the contract was made, and to make the quality of flour warranted by the contract, some $600, in addition to the amounts already in evidence. For the purpose of showing the amount of damage sustained by reason of the default of the plaintiff in this contract.

The offer is objected to by plaintiff’s counsel, because, 1st, defendant’s counsel were asked to embody in the offer the tinje the witness purchased the mill; also that he was the present owner of it, and they refuse to do so; and the offer is further objected to because the plaintiff is not bound by any repairs that the present owner of the mill saw fit to put to it; that the question is irrelevant. Offer refused and exception. [4]

The defendants then proposed to show by the witness, Robert Boggs, on the stand, that the product of the mill is now of a quality as good as that of other mills of like character and merchantable, and these results have been obtained by the addition of machinery and improvements and repairs to the machinery furnished by the plaintiff in this case, at a cost of $800.00 or $900.00, for the purpose of showing the value of the deficiency in the mill machinery furnished by the plaintiff. Objected to as irrelevant and incompetent. Objection sustained, offer refused and exception. [5]

Defendants then proposed to show, by the witness, James Galen-tine, on^the stand, that the product of this mill before its repair was of bad quality and unmerchantable, and that, after its repair, it was of good quality, to be followed by evidence showing that the mill was operated by the same miller under both regimes, for the purpose of showing that the reparation and improvement of the mill *498were necessary, to be followed by evidence showing the cost of such necessary improvement, for the purpose of setting off this necessary cost in this action for the contract price.

Objected to because the witness has stated that he was not acquainted with the product of this mill until 1886, and it is already in evidence from the Marsh Bros, that they had no connection with the mill after 1884, and the offer is irrelevant. Objection sustained, offer refused and exception. [6]

Plaintiffs’ counsel offered in evidence the deposition of H. A. Martin and C. A. Dawson, &c.

Defendants’ counsel object for the reason that the depositions have not appended a formal jurat, and for the further reason that the fifth interrogatory propounded to the witnesses is not according to law.

By the Court: Objection overruled and exception to defendants’ counsel. The objection by defendants’ counsel to the 5th interrogatory is overruled by reason of rule No. 83 of our rules of court. [7]

The 5 th interrogatory is as follows : “ Do you know any other matter or thing touching the matters for which this action was brought, that may tend to the benefit or advantage of the said plaintiff? If yea, declare the same fully and at large as if you had been particularly interrogated thereto.”

Rule of Court No. 83 is as follows: “ On the return of any commission, .... the prothonotary shall, as soon as may be, give notice to the respective attorneys, endorsing the time thereof, either of whom may, within ten days after service of such notice, file with the prothonotary a specification of his exceptions, if he have any, to the notice, service, form or execution of the commission . . . . or to the mode of swearing the witness, or to any acts or omissions of the commissioners, or of any other person or persons in and about the same; which exceptions shall immediately be placed upon the argument list by the prothonotary .... and no exception to the admissability of the evidence so returned and filed, unless it be so specified, shall be taken on the trial of the cause, unless it be an exception that might be taken to the evidence, if the witness were offered for examination orally in court.” [7]

Verdict for plaintiffs for $ 1,041 and judgment thereon. Defendants thereupon took this writ.

*The assignments of error*specified, 1-6, the rulings on the evidence, quoting the bills of exceptions, as above; and, 7, the admission of the deposition, quoting the bill of exception, the interrogatory and the rule of court, as above.

*Williams,*with him *Griffiths,*for plaintiffs in error.

In an action to recover the price of machinery warranted to do a specified work, but proved incapable, the plaintiff is only entitled to the price, less the difference between the value of the machinery furnished and the *499value of the machinery contracted for: Payne *v.*Noon, 6 Cent. 892.

Where a mill can be made to fill the warranty by repair or reconstruction, the cost of such repair or reconstruction, without regard to the ownership of the property, would furnish a reasonable and proper measure of damage: Walker *v.*France, 112 Pa. 203 ; Pennypacker *v.*Jones, 15 W. N. C. 361.

It was error to admit the depositions of Martin and Dawson: Smith *v.*Cokefair, 1 Pa. C. C. 48; Patterson *v.*Greenland, 37 Pa. 510; 1 Daniel’s Ch. Pr. 924, 4th Am. Ed.; Withers *v.*Gillespy, 7 S. & R. 16.

*L. W.*Doty, with him *A. M. Sloan,*for defendants in error.

The 1st offer of testimony was properly refused. The written contract did not obligate the plaintiffs to put the machinery in the mill in four weeks’ time. If the agent made any such representation, it was not shown that he had authority to make it; if it were made, it was after the contract had been entered into and therefore could have been no inducement for the signing of the contract. Besides, the machinery was to be put in at the expense of the defendants, and the delay was occasioned by the default of the defendants. Nor is such expense a proper element of damage.

The 2d offer of testimony was rightly rejected, because such defence was not embraced in the petition for the opening of the judgment, and in the order opening the judgment the defense was expressly confined to the matters set forth in the petition. There can be no question about the right of the court to impose terms upon opening a judgment and admitting the defendant into a defense. Even if the court had no such power, the plaintiffs in error are without remedy, as no exception was taken to the order imposing terms, and no such assignment of error is made.

The 3d and 4th offers were likewise inadmissible. The mere fact that the flour was defective goes for naught. It was certainly reasonable to require the defendants to show that the flour purchased was during the ownership and operation of the mill by the defendants. The offer specifies no time, the contract was personal between the parties to the suit, and it was not intended to be indefinite as to time or go to the protection of any subsequent vendee. Besides, the flour, if defective, might have been owing to unskillful operation or unmerchantable grain, and it was incumbent on defendants to show that in these respects they complied with the terms of the contract.

It was incumbent on the defendants to show by way of defense: 1. That the handling was skillful. 2. That the grain used in manufacturing flour was merchantable. 3. That the product was not equal in quantity or quality to that of another mill of the same “ system.” There was no attempt to compare the flour produced by this mill with other flour produced by a mill of the same “ system.”

The offers contained in the 5th and 6th specifications of error, *500for the reasons already given, were properly rejected. It certainly was not pertinent to show the character of the product long after the completion of the mill and after it had passed into other hands.

Oct. 29, 1888.

The technical objection to the depositions came too late: Sweitzer *v,*Meese, 6 Binn. 502 ; Wright *v.*Waters, 32 Pa. 514; Killum *v.*Smith, 39 Pa. 241; Syphers». Meighen, 22 Pa. 125 ; T. & H. Pr., p. 357- ...

The principle of Payne *v.*Noon does not apply, as the defendants did not offer to show the difference in value between the machinery as it was and as guaranteed.

Per Curiam,

There is nothing in this case that requires special attention, for the rulings of the court below were obviously right. Clearly, the defect in the machinery furnished by the plaintiff company to the defendants, if any such defect there was, might and ought to have been proved in some other manner than by showing the costs of repairs or additions put upon or to it by other parties.

The exceptions found in the seventh assignment, taken to the commission and depositions, might have been sustained had they been preferred in time and manner prescribed by the rules of court; but, those rules not having been complied with, the defects in the execution of the commission, and the accompanying depositions, must be taken as waived.

The judgment is affirmed.