Dissenting Opinion.
Poché, J.Prom the preponderance of the evidence it appears to my mind that plaintiffs have not complied with the stipulations of the contract with the defendant, and that they are therefore not entitled to recover the full amount of their claim.
The record shows, in my opinion, that the greater part of the accidents and breakages which have occurred to the machinery which they furnished to defendant must be attributed to damaging defects in said machinery, mainly inferior materials, weak and light metals used in the construction thereof. '
It is conceded by the learned judge of the district court that plaintiffs failed to comply with an important stipulation in the • contract, which called for steel pinions, in place of which they furnished cast-iron pinions, thus causing a serious breakage in that part of the machinery and entailing grievous injury on the defendant.
It is also shown that owing to the insufficient chains for the cane-carrier, furnished by plaintiff, defendant has been compelled to furnish chains of his own from his old mill in order to be able to use that carrier, which is an important factor in a sugar mill, to which it is the sole and exclusive feeder.
Defendant’s contention as to the insufficient size of the juice-pans is not even controverted by the plaintiffs and the judgment makes no provision for that defect, which is certainly a very damaging shortcoming, since it exposes defendant to constant loss of cane-juice, which is the very substance of sugar making.
The preponderance of the evidence also shows that the looseness of the shaft of one of the rollers of the two-roller mill must be attributed to defective workmanship and to the use of too light and too weak material in its construction.
The effort made by plaintiffs to prove unfair usage and unskilful handling of that particular part of the machinery is not a success. It *123consists in the main of expeit testimony of mechanics who express the opinion that the accident is due to the agglomeration of bagasse around the rollers, which hardens by accumulation and friction, thus loosening the shell of the roller from its shaft. But none of these witnesses ever spent as much as a day at that sugar-house while the mill was in operation, and their opinion cannot destroy the positive testimony of defendant’s overseer, of his two engineers, who state in detail the means employed in running the mill, the attention given to those two rollers, and who state that a man was stationed there charged with the special duty of scraping the bagasse off the rollers and of thus preventing the very cause to which the expert witnesses trace the accident; and besides, the record contains the testimony of other and equally competent expert witnesses who state that the cause referred to would not result in the loosening of the roller from the shaft, but ■that such an obstruction would break the coupling or the cog- wheels; and to my mind that opinion carries more weight, as it rests on practical experience.
Now it appears, from defendant’s motion for a new trial and from affidavits filed in support thereof, that since the trial had begun below a very important part of the machinery gave way, and that thereby the mill has become unfit for use without repairs, and on this vital fact defendant rested his application for a new trial, during the course of which he offered to show by the testimony of experts that this and other accidents and breakages in that machinery were the result of damaging defects in the material used and in the construction thereof.
In my opinion it was error to refuse that new trial, and under the effect of that ruling this court is deprived of indispensable testimony bearing on the crucial point in the controversy. The motion for a new trial was supported by the affidavit of a scientific machinist who had made an examination of the machinery with a view to detect the proximate cause of this last breakage, and who is entirely disinterested in the cause.
For those reasons, and for others too numerous to mention in this opinion, I think that the judgment appealed from should have been reversed and,that the cause should have been remanded for another trial, with a view to ascertain aud determine the pecuniary extent of defective machinery furnished by plaintiffs under their contract, so as to deduct the same from the contract price. 9 Ann. 273, Goodloe vs. Brooks.
I therefore dissent from the opinion and decree of the majority.
Mr. Justice Todd concurs in this opinion.