STILLWELL AND BIERCE MANUFACTURING COMPANY
v.
PHELPS.
No. 209.
Supreme Court of United States.
Argued March 18, 1889. Decided April 15, 1889. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN.*524 Mr. G.W. Hazleton for plaintiff in error.
Mr. John T. Fish, for defendant in error.
*526 MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court.
The principal position taken in the argument for the plaintiff is that the defendant, having received and retained the machinery furnished under the contract sued on, was bound to pay the contract price; and in support of this position cases were cited, holding that under a contract to manufacture or to furnish a chattel satisfactory to the purchaser, the purchaser, if he takes possession of and uses it, thereby conclusively accepts it as satisfactory, and binds himself to pay the whole contract price.
Considering the instructions given at the plaintiff's own request, and the grounds on which the plaintiff excepted to the other instructions of the court, it is, to say the least, doubtful whether this point is open. But, assuming it to be open, it clearly cannot be sustained, and the cases cited are inapplicable.
The plaintiff's agreement was not for a sale of the machinery, subject to a condition that it should be satisfactory to the purchaser. But it was an agreement, not only to furnish machinery of a certain description and quality, but also to set it up and put it in complete operation in the defendant's mill. The machinery was to be erected on the defendant's land and made part of his mill; and one instalment of the price was to be paid on the delivery of the machinery there, and before the plaintiff had completed the work to the satisfaction of the defendant. In such a case, it would be most unreasonable to compel the defendant, in order to entitle him to avoid paying the whole contract price, or to recover damages for the plaintiff's breach of contract, to undergo the expense of taking out the machinery, and the prolonged interruption of his business *527 during the time requisite to obtain new machinery elsewhere. The rule of damages, adopted by the court below, of deducting from the contract price the reasonable cost of altering the construction and setting of the machinery so as to make it conform to the contract, is the only one that would do full and exact justice to both parties, and is in accordance with the decisions upon similar contracts. Benjamin v. Hillard, 23 How. 149; Railroad Co. v. Smith, 21 Wall. 255; Marsh v. McPherson, 105 U.S. 709, 717; Cutler v. Close, 5 Car. & P. 337; Thornton v. Place, 1 Mood. & Rob. 218; Allen v. Cameron, 3 Tyrwh. 907; S.C. 1 Cr. & M. 832.
The notice given by the defendant to the plaintiff "to put the mill in repair so as to do good work" was sufficient to cover all alterations necessary to accomplish that end.
No error is shown in the exclusion of Geissner's testimony as to the rental value of a mill which he had never seen and knew nothing of. Whether a witness called to testify to any matter of opinion has such qualifications and knowledge as to make his testimony admissible is a preliminary question for the judge presiding at the trial; and his decision of it is conclusive, unless clearly shown to be erroneous in matter of law. Perkins v. Stickney, 132 Mass. 217, and cases cited; Sorg v. First German Congregation, 63 Penn. St. 156.
Judgment affirmed.