#### Pittsburgh Bridge Co. *v.*Brown et al.

An assignment of error, embracing all the testimony taken on a commission, will not be sustained where part of the testimony is relevant and proper.

Defendant entered into a contract to “ upset ” some iron rods, which the plaintiff was to furnish to parties in Chicago. Plaintiff furnished the rods to the defendants at Pittsburgh. After the work of “ upsetting ” had been done, the rods were shipped to Chicago without being tested at Pittsburgh. They were subsequently returned to the plaintiffs as unfit for use. Plaintiffs claimed that they had furnished good rods which the defendants had spoiled in the process of “upsetting.” They offered evidence of various parties taken under a commission to Chicago, to the effect that the rods were unfit for use and had been spoiled in “ upsetting.” A specimen of the rods was offered in evidence and admitted under objection that they were not sufficiently identified. It appeared in evidence that the superintendent of defendant had examined the specimen and had said that, if it was inferior, it was due to the hurried manner in which the work had been done in defendant’s blacksmith shop. The plaintiff produced a number of witnesses, who testified that the work was bad. A number of defendants’ witnesses denied this. The court submitted the whole case to the jury. Held, not to be error.

Oct. 24, 1888.

Error, No. 114, Oct T., 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict for plaintiff in an action on the case by John H. Brown et al., partners as Brown & Co., against The Pittsburgh Bridge Co., at Dec. T., 1885, No. 396.

The declaration claimed damages resulting from the alleged careless and negligent manner in which the defendant upset or welded certain iron rods furnished to them by the plaintiff. The plea was not given.

The evidence was to the following effect, at the trial, before Stowe, P. J.:

In 1884, Brown & Co. were awarded a contract for furnishing iron rods to be used in the building of a corn elevator in Chicago. They subsequently entered into a contract with defendants to do the upsetting or welding of the rods. The plaintiffs furnished the rods, and, after the work of upsetting was done by the defendants, they were shipped to Chicago without any test being made in Pittsburgh. *342Subsequently the rods were returned to the plaintiffs as being unfit for use.

J. E. B. Neil, a representative of the plaintiffs, testified, inter alia, as follows:

“ A. About two or three weeks after the order had been filled by the Bridge Co., we received notice from our correspondent, our representative in Chicago, that these rods were condemned; some half of the rods, or about one-third of the rods, some 600, had been placed to position in the elevator. Q. Did you report that to the Bridge Co.? A. As soon as we received notice there w'as trouble in Chicago, we notified those people and had some rods or some samples of the rods brought here. We asked them to come and examine them with us, that we didn’t consider that it was our responsibility. One of the representatives of the concern came down to our place and showed him the sample of the rods with which the trouble originated in Chicago.

“By the Court: Q. You mean the rods had been sent back? A. They sent two samples, I think it was, of the lot showing the trouble. Q. Sent back from Chicago? A. Yes, sir.

“ByMr.Brown: Q. You showed it to whom? A. We showed it to a Mr. Nichols and he confessed as to what he thought was the trouble and where it originated. Q. What did he say? A. He said it was not very nice work, that it was nothing more than could be expected; that they were busy, and, when they undertook the order, they were very busy in their blacksmith shop, and had to rush the thing through. He said that that was nothing but the natural result of hurrying the work through at the blacksmith shop.”

Other witnesses for the plaintiff testified to the bad character of the work. A number of defendants’ witnesses denied that the work was bad.

Counsel for plaintiff offered in evidence testimony taken on a commission at Chicago, before a commissioner appointed for that purpose, upon interrogatories and cross-interrogatories, in May, 1887, and now on file in this court. Objected to as incompetent and irrelevant for the reason that the defendants are connected in no way with the work and materials that the witnesses testified to in their deposition. Objections overruled and exception. [1]

The testimony under the commission was to the effect that the work was improperly done, and that the rods were defective and unfit for use.

Counsel for plaintiff offered in evidence the samples of iron identified and referred to by the witnesses in connection with their testimony. Objected to for the reason that the evidence does not show that the defendants ever did any work on the samples offered in evidence. Objection overruled and exception. [2]

The court charged the jury, inter alia, as follows, by Stowe, P. J.:

*343“ The first question for your determination, and the one upon which the defendant’s counsel has been very strenuous in his argument, is that there is not sufficient evidence to satisfy you that any of the work referred to by the witnesses, including the pieces of iron that are here, were parts of the work done, or that the rods referred to were the ones operated upon by the defendant. You have heard the answer made to that by the counsel on the other side, and it is for you to say whether that is reasonably satisfactory or not. If you should think the weight of the evidence shows that the rods referred to by the witnesses on which these tests were made, parts of which we have in court, were the rods worked upon by the defendant, the next question is, was the work done in a reasonably workmanlike manner. If these are the same rods, you have testimony indicating, to a greater or less extent, that they were improperly welded, that it was not simply an ordinary job, but a very bad job, such a job as ought not to have gone out of any shop, for any purpose for which work of this kind can be used. There is evidence, although it-was not a part of the-contract, tending to show that the defendant knew the purpose for which these rods were made, and, while that would not essentially affect their contract, because they were bound to make a good and workmanlike job of it at all events, yet it would indicate that they understood, in a general way, the purpose to which these rods were tó be applied, and that they ought to be made at least of a reasonable strength, because, if they had been put in place and broken down, the result might have been a terrible calamity, resulting, perhaps, in the death of many persons, and in the destruction of property, which would, if the defendant were liable, involve the payment of damages amounting perhaps to hundreds of thousands of dollars. If liable at all, the defendant would be liable if these rods had been put in place and they, had broken down, and the result had been the destruction of life and property; they would have been ultimately liable for that if they had any knowledge, as it appears they had, of the purpose for which the rods were intended. That has nothing to do with the case, however, except this : The interest of these parties was to make a good job, they were aware of that fact, and they obviously intended, as far as the manager of the defendant company was concerned, to do a good job. Now, did they do it ? Does this evidence satisfy you that these rods were the ones which the defendant worked upon, and not some other rods that were fraudulently substituted by the parties in interest, or somebody in Chicago ? The weight of the evidence must be on the part of the plaintiff. The defendant did the work, to all general appearances, well. They handed it over to the plaintiffs, and the plaintiffs now say you have not done it in such a way as to make it our duty to pay you, and,'in addition to that, you have done it so badly, that we have had to pay money to make it as you ought to have made it, and we want you to reimburse us. Now, the plaintiffs must satisfy you fairly, by the weight of the evi*344dence, that the facts necessary to make out such a case have been established. If they do, they have made out a case in which they are entitled to recover whatever the jury are satisfied it cost them to make this work as it ought to have been made by the defendant. I do not recollect the bill, some $1,500 probably, but from that you would of course deduct the price that the plaintiff would be compelled to pay the defendant under the contract; the difference would be your verdict.

“ On the other hand, if you were not satisfied fairly by the weight of the evidence that this testimony, referring to the bad work, or the bad rods, badly worked rods, if it does not make you believe that those rods were the ones worked upon by the defendant, or if you believe that they were the rods worked upon by the defendant, and are still not satisfied that the work was done in an insufficient and unworkmanlike manner, the plaintiffs have failed to make out their case, and not having paid anything for the rods, you should certify a balance in favor of the defendant for the price of them as if made according to contract, that is some $497.92, with interest from Dec. 1, 1884. That comprehends the whole case. Were the rods, which have been referred to by the witnesses, the ones which were worked upon by the defendant ? If so, are you satisfied that they were, as claimed by these witnesses, insufficiently and improperly made; that it was necessary, to make them as they ought to have been, to put the work upon them that was put upon them by the plaintiffs, or those operating for them in Chicago. If you believe that, it would seem to follow pretty strongly, at least an inference, that this work was improperly done by somebody, and the defendant having done the work, it appears to be liable. There are two questions of which you must be satisfied by the testimony: First, that this was the very work that was done by the defendant; and, second, that the work, as done by the defendant, was done in such an insufficient and unworkmanlike manner as to make necessary the work that was subsequently done to perfect and make it a complete job, work that should have been done by the defendant; and, if you do, then, to that extent, deducting the price that the plaintiffs were bound to pay, the plaintiffs have sustained damage, and your verdict should be for that amount. On the other hand, if the plaintiffs fail to satisfy you of those facts, you should certify a balance in favor of the defendant for the value of the rods according to contract.”

The defendant presented the following point:

“ Under all the evidence in this case, the verdict should be for defendants, and the jury should certify a balance in favor of the defendants of $497.72 and interest thereon, from December 1st, 1884, to date, amounting to $600.10. *Ans.*Refused.”

Verdict and judgment for plaintiff for $1,392.28. The defendant then took this writ.

*The assignments of error*specified, 1 and 2, the admission of *345the evidence, as above, quoting the bills of exceptions, but not the evidence ; and, 3, the refusal of the point, quoting the point and answer.

Jan. 7, 1889.

*Winfield S. Wilson*and *George D.*Riddle, for plaintiff in error.—

The evidence was insufficient to submit the case to the jury. There was nothing to connect the samples produced as evidence with the rods furnished by the defendants. Where the evidence is insufficient, the case should be withdrawn from the jury. Longenecker *v.*P. R. R., 105 Pa. 328.

*A. M. Brown,*for defendant in error.

The identity of the samples was admitted by defendant’s superintendent, and not denied by any witness. All the questions attempted to be raised here, should have been addressed to the jury rather than to this court.

Per Curiam,

We are, in this case, presented with three assignments of error, neither of which can be sustained. The first is general, embracing all the testimony taken on a commission executed at the city of Chicago; but, as certainly part of this testimony was relevant and proper, we cannot reverse for this exception.

The complaint found in the second assignment is that samples of the defectively worked iron were admitted in evidence' without proof to show that the defendants did the work upon them. Having examined the evidence, we find that it sufficiently identifies the samples as those wrought by the defendants.

As to the third assignment, we have only to say that the evidence, if believed, warranted a verdict for the plaintiffs, rather than for the defendants.

The judgment is affirmed.