ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.
MR. JUSTICE HARLAN delivered the opinion of the court.
1. It is suggested that the amount in dispute is less than five thousand dollars. This point is not well taken. The amount for which Russell & Co. sued in their original petition was $4206.07, with interest from October 9, 1888. That amount was increased by the supplemental petition to $5882.20. The plaintiffs in error, who were defendants below, denied their liability in any sum, and, by way of counter claim, in accordance with the practice in Nebraska, asked for judgment
against Russell & Co. in the sum of $10,000. The verdict and judgment were in favor of the plaintiff and for the sum of $4450. That sum, and the amount sued for in the counter claim, are in dispute upon this writ of error. This court, therefore, has jurisdiction.
2. By an agreement in writing, made June 22, 1888, between Russell & Co., a corporation, and Buckstaff and Utt, the former agreed to furnish and deliver to the latter on cars at Lincoln, Nebraska, three boilers, 60 inch X 14 feet; one automatic cut-off engine, 125 horse power; one automatic cut-off engine, 50 horse power; one Gordon Maxwell duplex pump; one Garfield injector; one heater, and any necessary fittings of sufficient size and dimension to properly run such plant; also two smoke-stacks 32 inch diameter, 60 feet long, made of No. 12 iron, with fancy tops, guy rods and stays. For those articles Buckstaff and Utt agreed to pay four thousand nine hundred and fifty dollars, as follows: One-third cash when the machinery was "steamed up ready to run, the balance in six and twelve months, with interest at the rate of seven per cent per annum from time of erection in Lincoln, providing that, with proper and careful management, said engines, boilers, and pumps are hereby guaranteed to work, and that said engines do give the amount of horse power as herein specified, and to be as economical of fuel and as durable as a Corliss non-condensing engine." "It is also understood and agreed," the contract proceeded, "that said Buckstaff and Utt shall use fair and honorable means to satisfy themselves before payments are due, that said engines, boilers, and pumps are working to their entire satisfaction, and should they not be, then, in that event, the said Buckstaff and Utt are to notify said Russell & Co., and said Russell & Co. must at once comply with the terms of this contract within sixty days, and in the event they do not, the said Buckstaff and Utt may declare this contract paid in full, or said Russell & Co. shall pay back to said Buckstaff and Utt all money paid to them, and said Russell & Co. shall pay said Buckstaff and Utt such damages as shall be declared fair by competent judges, and after paying such damages may remove said machinery without cost to
said Buckstaff and Utt. It is hereby agreed that Russell & Co. shall ship said machinery not later than July 15, 1888."
Attached to and made part of the contract are certain proposals from Russell & Co. to Buckstaff and Utt. One of them is a proposal to furnish three eighty horse power boilers, fully described, and contains this stipulation: "All boilers tested to 150 pounds hydraulic pressure; workmanship and material guaranteed to be first class; plans for setting boilers to be furnished without expense to purchaser." Another is a proposal to furnish one right-hand automatic cut-off engine, fully described, and contains this stipulation: "We guarantee the above engine to be well made, of first class material, and in operation to work as economically as any similar engine in the market." A third is a proposal for another right-hand automatic cut-off engine, accompanied by a similar guaranty.
In the first count of the petition it was alleged that all the machinery covered by the contract was delivered by the plaintiff to the defendants in strict accordance with its terms; that the defendants were to pay for it the sum of four thousand nine hundred and fifty dollars, one-third in cash when the machinery was steamed up ready to run, one-third in six months, and the remaining one-third in twelve months, with interest at the rate of seven per cent per annum from the time of the erection of said machinery; that all of the machinery had been delivered, was set up, put in operation, and commenced running on the 9th day of October, 1888, at which time one-third of the four thousand nine hundred and fifty dollars became due; that another one-third became due on the 9th day of April, 1889; that neither of those amounts nor any part thereof have been paid by the defendants; and that they have refused and neglected to pay the same or any part thereof, although often requested so to do. The second count was for piping and other machinery of the value of $392.86, and the third for grate bars, of the value of $450, alleged to have been sold and delivered by Russell & Co. to the defendants. By a supplemental petition the plaintiff enlarged its claim so as to embrace the last instalment of the $4950 for which the contract stipulated.
At the trial below the defendants objected to the introduction of any evidence in support of the first count of the petition, on the ground that it did not state facts sufficient to constitute a cause of action. This objection was overruled, and to that ruling the defendants excepted.
In support of this exception it is said that if it had been alleged, or indeed proven, that the plaintiff did not "use fair and honorable means to satisfy themselves," before payment was due, that the machinery was "working to their entire satisfaction," or that the refusal to accept was fraudulent, still no action could have been properly maintained for the sale and delivery of the property, because, at all events, there would have been no acceptance, and, in its absence, the contract would have remained executory; consequently, it is argued, the only action maintainable, if any, would have been one to recover damages for fraudulently refusing to accept the machinery and articles furnished. The counsel for the defendants refer to numerous cases which, it is insisted, sustain the construction of the contract upon which this exception is founded. It may be well to refer to some of those cases.
In Mansfield Machine Works v. The Village of Lowell, 62 Michigan, 546, 552, which was a suit upon a contract with a village for the sale of a steam engine and attachments, and which contract provided that a named sum should be paid "when engine and hose are accepted, balance in equal payments -- first, on or before six months; second, on or before eighteen months, with interest at six per cent from date of acceptance," it was held that the contract fairly construed, did not provide for the payment for the engine and machinery until they were tried and accepted; that under its terms the property remained in the vendor until acceptance and after trial of it, the village ...