Erie City Iron Works v. Barber & Co.

delivered the opinion of the court, February 5th 1883.

As long ago as the case of Chambers & Boyd v. Crawford & Barker, Add. 150, it was, in this state held, that if a workman does a piece of work insufficiently, he is answerable for all the consequences which may result from that insufficiency, and this though the employer may have accepted that work without objection. So also in Godley v. Hagerty, 8 Har. 387, it was determined that where one erects a building for rent, he is bound to reasonable skill and dilligence in its construction, regard being had to the purposes for which it is intended, and that if such building be negligently and carelessly built, the owner is responsible, even to a stranger, for damages suffered by its fall. And it is said, in this case, by Mr. Justice Woodward, “ If he will build as charged and found in this case, ‘ loosely, carelessly, unskillfully and negligently,’ and with ‘ insufficient and improper materials,’ whereby the innocent and unsuspecting are injured, let him respond in damages. He is bound to employ reasonable skill and dilligence in the erection of the building, regard being had to the uses and purposes for which it was designed.” Both in principle and language these cases fit the one in hand. The defendants, for a full and adequate compensation, undertook to manufacture for the plaintiffs a steam boiler, and, if the evidence on the part of the plaintiffs was believed, as it seems to have been, they, the defendants, knew exactly where it was to go, what work it was expected to do and what pressure it must bear; and if they in fact did so carelessly and negligently construct it that it was not able to do that work, or bear that pressure, theirs was the fault, and upon them must fall the damage resulting to the plaintiffs’ mill and machinery.

The action is properly case, and the declai’ation as properly charges the defendants with negligence and deceit in the construction of the boiler. In it there is but the single defect that it does not in terms charge the defendants with having: *163knowingly committed their deceit; in other words, the ñarr. is wanting in a scienter. But as this is a defect purely technical in its character, the court did well in allowing its amendment by an additional count. It is idle to insist that by such an amendment a new cause of action was introduced. No novel charge was thereby brought into the case, and to sustain their action the plaintiffs must make use of the same evidence to establish a contract, and negligence and carelessness, that was required under the original narr. nor was the burden of the defence in the slightest degree increased. The pure technicality of the amendment is thus manifested ; so far from introducing a new cause of action, it does not even beget the necessity of a single new item of evidence. Nor do. we regard the objection to the amendment which alleges a warranty, as well taken. The warranty is laid simply as an inducement to the contract, or as one of the fraudulent means by which the plaintiffs were prevailed upon to accept of and use the defective boiler. For such purpose it was not only proper to lay,- but also to prove, the warranty, and had the court confined the plaintiffs to that use of it, there would have been'no error; as in Langridge v. Levy, 2 M. & W. 519, though it was held that the warranty, as a contract, could not be used, yet as a representation it was admitted ; so here, it was proper both to lay and prove the warranty as a representation used to induce the plaintiffs to buy a bad or defective article. On the authority, however, of the case above cited, as well as that of Mahurin v. Harding, 28 N. H. 128, there should have been a scienter added to this count also, and which may yet, on motion to the court below, be supplied. But we agree with the counsel for the plaintiffs in error, that it could be used for no other purpose, and that the court erred in admitting the warranty as a substantive cause of action on which recovery might be had. It is true that an action for deceit will lie for the breach of a warranty, but none the less does the action depend upon proof of an actual contract, and not upon one, as in the case in hand, which is merely implied. The original pleadings put nothing in issue but an implied contract of warranty, whilst the court also submitted to the jury another of a substantive character, framed by the parties themselves, and which was barred by the statute. Here was certainly the introduction of a new cause of action, and which, under the circumstances of this case, ought not to have been allowed.

We also think that complaint is justly made of the court below in that it gave to the jury no rule for the assessment of damages, but left the determination of this matter to the mere caprice of that body. Whilst the defendants’ point involving this question was properly negatived, yet there ought to have been some definite instructions upon this subject. The jury *164should have been told, that if they found for the plaintiffs, the damages must be compensatory only ; neither speculative nor vindicatory. That the true .measure thereof was the amount of money required to put the mill and machinery, including the boiler, in as good condition as they were before the explosion, and that for all incidental damages, such as the loss of profits, and the like, the interest on the money thus expended, must be regarded as a full equivalent.

On a careful examination of the remaining assignments we discover nothing in them that requires special notice ; we think the instructions complained of were fully as favorable to the defendants as they should have been.

The judgment is reversed and a new venire awarded.