MANUFACTURERS' AUTOMATIC SPRINKLER CO. v. GALBRAITH et al., 196 F. 472

BAKER, Circuit Judge (after stating the facts as above). I. If Ritter & Mott were agreed upon as independent engineers to act for the parties jointly, counsel do not deny that plaintiff in error legally could guarantee the sufficiency of the engineers’ plans. City of Lake View v. MacRitchie, 134 Ill. 203, 25 N. E. 663. That Ritter & Mott acted for the parties jointly, and that the sufficiency of the truss design was not within the guaranty of “our work,” is the contention. But we do not so view the contract. 1. Plaintiff in error proposed to furnish a complete system. Next followed the specifications.

Then came the covenant to do any work not specified necessary to “complete the entire work.” If the specifications prepared by plaintiff in error were intended to take any part of the “entire work” -out of “our work,” that intention should have been plainly indicated. If thfe specifications were silent respecting the employé who should make the truss design, no pretense could be interposed that the design, by whomsoever plaintiff in error had it drawn, would not be included in plaintiff in error’s guaranty of “our work.”. A named employé, no less than an unnamed, is merely the hand of the master.

Plaintiff in error employed a steel company to erect the truss and a cooperage company to supply the tank. Truss and tank would have been as fully “our work” if steel company and cooperage company had been named in the specifications as the em-ployés who would do those parts of the “entire work.” 2. Though Ritter & Mott were employés of plaintiff in error, Mrs. Galbraith could have agreed to be bound by their plans for the truss.

Ritter & Mott were also “to examine the premises and report upon the sufficiency of the portion of the substructure to be loaded.” Both parties agreed to be bound by the report, without liability one to the other in case the report proved unwarranted. If plaintiff in error had intended to except their employés’ truss design, the contract clearly demonstrates that its officers knew how to draft and understood the force of such an exception. II. Three counts were in the declaration. Two averred failure to construct the truss in accordance with Ritter & Mott’s plans.

In the third were allegations of plaintiff in error’s undertaking, “and that defendant (plaintiff in error) further agreed to guarantee said work for the period of one year; that plaintiff, confiding in that promise and guaranty, permitted defendant to enter upon the build-iug; * * * that the said structure and appurtenances were not constructed by defendant so that the same in any manner complied with the guaranty so given by defendant”; and (after setting forth that defendant omitted a tie member from the truss as designed by Ritter & Mott, the count proceeded) “that by reason of defendant’s failure to construct said structure according to the terms of said guaranty, and by negligence and failure of defendant to construct said structure according to Ritter & Mott’s plans, the steel foundation structure * * * collapsed,” etc.

Whether the pleader had. in mind to count on the guaranty of a sufficient plan, or on the negligent omission of a member shown on the plan, or on both, may be uncertain. But the course of the litigation in the court below precludes plaintiff in error from making a successful assault upon the declaration here. No challenge, by special demurrer for duplicity, or by motion to make more specific, or in any manner, was directed to the adequacy and definiteness of the pleading.

During the hearing of the evidence a situation developed on which the court ruled that whether or not the collapse occurred through the omission of the tie member was immaterial; that the only question was under the guaranty. At the close of the evidence plaintiff in error moved for a directed verdict, but did not object that, with negligent failure to build according to Ritter & Mott’s plans out of the case, no basis was laid in the declaralion for a recovery on a guaranty of suitable plans. Yet that in fact was the issue to which the court had narrow-ed the controversy.

Rules that objections must be seasonably made and that verdicts cure ambiguities and uncertainties in pleadings were designed to prevent parties, who by the evidence and the court’s rulings were informed of the issue and joined therein without claim of surprise, from availing themselves of such undisclosed objections as anchors to windward. III. We have no doubt, having determined that plaintiff in error guaranteed the sufficiency of the plans for the steel support, that the damages resulting from the collapse were legally within the contemplation and intention of the parties.

Ninety tons of tank, water, and steel smashed through the building from roof to basement. The specifications show that they could only have been prepared after an examination of the building. This was a six story, basement, and' attic structure, with brick walls and wooden joists and floors. That the 90 tons might cause the building to settle was considered by plaintiff in error, for it shielded itself from liability on that account. Plaintiff in error did not expect a 90-ton pile driver to strike the roof. But, if it should, any reasonable person ought to expect the result that actually followed.

Damages to building, and to tenants in property and. person, were the natural and probable consequence of plaintiff in error’s breach. IV. From a careful examination of the bill of exceptions we find that plaintiff in error’s objections to the proof of damages must have been understood by the court (no matter what counsel may have intended) to be directed and limited to the proposition that defendant was not answerable in law for damages of that character. We find no objections that were clearly directed to the method of proof. Respecting every item, we find that the evidence made a prima facie case.

On the personal injury claims, the fact that defendants in error, not knowing whether or not they would ever get back any of their money, paid after advice and investigation by competent and reliable counsel certain amounts in settlement, was some evidence of the reasonableness of the amounts. V. Plaintiff in error introduced no evidence touching the amount of the damages.

If there was error (we do not say so) in directing the jury to return a verdict for not less than a certain amount named, it was harmless on the facts of this record, for the court would have been justified in setting aside a verdict for a smaller amount. In short, under the law and the evidence, the jury could not have brought in any other verdict on any fair and intelligible basis of decision. The judgment is affirmed. Note. — Judge GROSSCUP participated in the hearing and consideration of this ease, but not in the formulation of the opinion.