Plaintiff is a corporation located in New Jersey, engaged in manufacturing nichrome, a metallic alloy capable of withstanding high degrees of heat. Defendant is a Connecticut corporation of long experience in the building of industrial furnaces, and in the summer of 1919 was negotiating with a customer who required an annealing furnace with two retorts to be subjected to a high heat, and for that purpose inquired of the plaintiff's engineer, McKinney, who recommended cast nichrome retorts, made in sections, to be welded together. It was represented to the defendant that the plaintiff, if it got the order, could and would do the necessary welding, and the written order annexed to the complaint was given and accepted. The manufacture of nichrome retorts of this size was a more or *Page 723 less experimental proposition, and the thickness of the walls of the cylindrical sections of the retorts was afterward increased by agreement from seven sixteenths to three quarters of an inch. Owing to the size and the increased thickness of the sections the plaintiff found it was not equipped to do the welding, and the trial court has found that thereupon the defendant agreed to take over the welding and instructed the plaintiff to deliver the sections when constructed to the Oxweld Company, for that purpose. This finding, which is excepted to, involves one of the most important issues of fact. It is also found that the time for making delivery of the sections was extended by agreement to January 15th, 1920, and that delivery was duly made by the plaintiff, in accordance with defendant's instructions upon that date. This finding is excepted to. The Oxweld Company experienced considerable difficulty in welding the sections. They succeeded in welding the sections of one retort by cutting them vertically, but did not make the vertical welds, and did not attempt to weld on the dome, for the reason, as the court finds, that before they had done so the defendant notified them to cease work and return the castings to the plaintiff. This finding is excepted to. Other findings to which the defendant excepts are that the castings were returned by the defendant to the plaintiff upon the plaintiff's proposition that, if returned, it would allow the defendant scrap value at the rate of twenty-five cents a pound, which was a fair allowance; and that it was practicable and feasible to weld the sections into one complete retort.
Taking up the defendant's assignments of error in their order. Numbers one, two and three attack the three conclusions of the trial court already set forth. They are attacked as logically inconsistent with the subordinate facts found, but this contention is not very *Page 724 much pressed and we think it plainly untenable. Assignment number four includes the exceptions to findings. Paragraph six finds that while the plaintiff originally agreed to do the welding, the defendant, during the negotiations growing out of the plaintiff's inability to do so, "took upon itself the matter of welding and relieved the plaintiff from any obligation to weld." Defendant's brief states that its Exhibit BB contains all the evidence on this point, but the record shows that the court has made some of the correspondence between the parties a part of its finding by reference, and by its memorandum on the bill of exceptions has also included other testimony on the point, as well as the correspondence between the defendant and the Oxweld Company. While the parol evidence of the parties is conflicting, the correspondence and the conduct of the defendant as shown therein fully justify the the finding of the court on this most important issue of fact.
There is the direct testimony of Mr. Colloman that after the thickness of the ring sections had been increased by agreement the plaintiff positively refused to do the welding and insisted that Mr. Kenworthy handle that matter directly with the Oxweld Company. Thereafter defendant agreed with the Oxweld Company upon terms, gave it a written order to do the welding in its own name, and paid the Oxweld Company for the work so far as it was completed.
Paragraph seven, finding that the defendant instructed the plaintiff to deliver the rings to the Oxweld Company for welding, is confirmed by the express admission of Mr. Kenworthy that such was the fact.
Paragraph ten is not disputed in so far as it finds that the Oxweld Company finally succeeded in welding the sections of one retort by cutting them vertically, and the part which is excepted to, to wit, that before *Page 725 the Oxweld Company had made the vertical welds or attempted to weld on the dome, they were notified by defendant to cease work and return the castings to the plaintiff, is supported by a letter from the defendant to the Oxweld Company directing them to do nothing further, and by Mr. Edwards' testimony that the castings were shipped to the plaintiff by defendant's direction.
Paragraphs eleven and thirteen, finding that the plaintiff refused to accept the castings on any other basis than that of crediting the defendant with their value as scrap metal, which credit amounted to $911.75, is supported by the plaintiff's letter to the defendant of April 2d 1920, and the fact that the castings were returned to the plaintiff by defendant's direction.
Paragraph fourteen, finding that the time for making delivery of the castings was extended by agreement to January 15th, 1920, is fully supported by the correspondence. The defendant's order to the Oxweld Company to weld the castings was dated January 31st, 1920.
Paragraph sixteen, finding that it was practicable and feasible to weld the castings into a complete retort, is borne out by the testimony of Mr. Edwards of the Oxweld Company. He testified that the difficulty in welding the ring sections together was due to expansion under heat, caused by their shape, and having overcome that difficulty by cutting each ring into two semicircular sections, they expected no trouble in making the vertical welds. This disposes of all the exceptions to the facts found. The exceptions for refusals to find as requested, are in substance ancillary to and dependent upon the exceptions to the facts found, and we deem it unnecessary to discuss them.
The assignments of error for rulings on evidence divide themselves into two classes. Two of them are based on the admission of testimony (a) to show that *Page 726 the thickness of ring sections was increased by agreement, (b) to show that the defendant agreed to pay for the welding to be done by the Oxweld Company. These related to subsequent modifications of the terms of the original written contract, and the objection was on the ground that no change in the written contract was pleaded in the complaint. We think the testimony was admissible on the pleadings. As already pointed out, the copy of the original order annexed to the complaint carried the following notation, "[acceptance and variations made by the parties by correspondence, after date of the order]." Defendant was thus informally, but sufficiently, notified that the plaintiff would claim the terms of the original order were subsequently varied by correspondence. If the defendant desired to find out what variations the plaintiff would claim were made, it might have asked for a more specific statement on that point. But in fact, it appears that none was needed, for in its special defense the defendant affirmatively alleges that the increased thickness of the walls of the retorts was agreed to, and that the defendant was obliged at great expense and delay to procure the welding to be done by the Oxweld Company.
The other class of rulings excepted to, excluded telegrams received by the defendant from its customer, the Electric Alloy Company, and testimony of Mr. Kenworthy as to conversations had with representatives of the Electric Alloy Company. These were offered to show that time was of the essence of the contract between the defendant and its customer, and that the contract was cancelled by the defendant's customer on account of the delay in completing the retorts. No doubt the fact was admissible that time was of the essence of the defendant's contract with its customer, if that fact was brought home to the plaintiff *Page 727 before it accepted the defendant's order for the retorts; and the court has marked proven paragraphs of the defendant's draft-finding covering both of these points. But these telegrams were dated in December, 1919, and the court has found that the defendant extended the time for delivery of the castings to January 15th, 1920. The conversations between Mr. Kenworthy and his customer were hearsay, and here again the fact in question was otherwise proven by direct testimony and has been found proven by the trial court, so far as it was claimed to be true; to wit, not that the defendant's customer cancelled its entire order for the entire annealing furnace, but that it took from the defendant the furnace without the retorts, which it purchased somewhere else.
The remaining assignments of error are that the court erred in overruling the claims of law made by the defendant. Without exception the validity of these claims depends on the successful outcome of the defendant's attempt to correct the finding in some one or more of the particulars above stated.
There is no error.
In this opinion the other judges concurred.