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by the terms of your contract of February 15th, 1898, with me, is not to exceed $4,000. From this $4,000 should be deducted such bills as I have paid, which make up the cost of the 'completed motor.'

Inclosed find a statement showing what I make the balance due you to this date, viz., $1,377.31. "Yours very truly,

Arthur P. Dodge."

"Statement of Cost of Car No. 5. 1898. June 30. See Pusey & Jones Co.'s bill for labor

and materials at Jackson & Sharp Co...... $ 64 67 July 7.

do

25 42 July 20.

do
do

17 68

do

$ 107 77

1,637 66

491 31

July 26. See Jackson & Sharp's bill extra work...
Mar. 28. Paid Abendroth & Root Mfg. Co. for con-

denser
Mar. 25. Paid Penn Steel Casting & Machry. Co.

fr castings used in the car. April 9. Paid Crosby Steam Gauge & Valve Co.... July 5. Paid C. C. Jerome Packing Co. for pack

ing

207 60

6 00

40 00

Dr. Dickson Mfg. Co......

$2,490 34

Cr. Dickson Mfg. Co. as per contract.....
Cr. Dickson Mfg. Co. as per bill of extras April 1, 1898..

$1,000 00

388 63

$1.388 68 2.490 34

Less Dr. Dickson Mfg. Co. as above...

$1,898 34

Less additional charges:
Labor and attendance in moving motor from

Babylon, L. I., to Chesterfield, Mich........... $111 54
Say same amount of cost in returning motor to
Babylon, L. I......

111 54
Freight on motor from Babylon, L. I., to Chester-
field, Mich.

141 90 Say same amount for returning motor.

141 90 Paid boiler inspector at Detroit, Mich.

5 00 June 13. Additional charge for insurance on motor and boiler at New Baltimore, Mich......

9 15

521 03

Amount due Dickson Mfg. Co....

$1,377 31"

The court charged the jury that the plaintiff, on this evidence, had made out a prima facie case for $4,388.68; that defendant, by its inspection and acceptance, had waived its right to object to defective materials and workmanship, and to charge for putting said motor car in condition in which it would work properly.

The defendant relies upon the rule that in a contract by a manufacturer there is an implied warranty of good materials and skillful workmanship, and, where the manufacturer is notified that the article is to be manufactured for a particular purpose, there is an implied warranty against latent defects arising in the process of manufacture which would render it unfit for the purpose stated. But defendant has failed to note the exceptions that, where a known and described article is thus ordered for a particular purpose, there is no warranty that it shall answer the particular purposes intended by the buyer, where the manufacturer actually supplies the thing ordered (De Witt v. Berry, 134 U. S. 306, 313, 10 Sup. Ct. 536, 33 L. Ed. 896; Seitz v. Machine Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837), nor where the buyer relies on his own skill or judgment. The foundation of the doctrine of warranty is the responsibility of a vendor for deception. Hoe v. Sanborn, 21 N. Y. 559, 78 Am. Dec. 163. Hence, where a vendor is a manufacturer, and the vendee has ordered an article for a particular purpose, and has not had an opportunity of inspecting it during the inanufacture, the vendor is presumed to have had knowledge of latent defects produced by the process of manufacture, and must be held liable therefor.. Bridge Co. v. Hamilton, 110 U. S. 108, 114, 3 Sup. Ct. 537, 28 L. Ed. 86; Bierman v. Mills Co., 151 N. Y. 482, 490, 45 N. E. 856, 37 L. R. A. 799, 56 Am. St. Rep. 635. But where the vendee has an opportunity of inspection, and relies on his own judgment, there is no presumption of deceit, and no warranty is implied. Cunningham v. Hall, 4 Allen, 273, 274.

The defendant contended that under the written contract, Exhibit A, it was entitled to demand a final test of the completed motor at plaintiff's works, in order to determine its fitness for the purpose desired, and that inasmuch as it was incomplete when it was shipped to Wilmington, Del., the defendant had the right to make said final test at Wilmington; that the acceptance of the motor at plaintiff's works was only an acceptance of such material and workmanship as was there capable of determination, but that there was an implied warranty against latent defects which survived such acceptance; and that the question of compliance with said warranty could only be determined by such final test at Wilmington. In support of this contention, the defendant, upon the trial, offered evidence of the character of the tests made at Scranton, for the purpose of showing that such tests were necessarily preliminary and incomplete, because, inter alia, the parts necessary to a complete motor car had not been assembled; and of the character of the tests made at Wilmington, in order to show that the alleged defects were such as not to be discoverable until the body of the car was mounted upon and connected with said machinery. The court excluded this evidence on the ground that defendant, by its letter of June ist, had expressly accepted the motor in its then condition at Scranton, and had thereby waived its right to insist on a further test. On May 1oth the defendant had written to the plaintiff as follows:

"I believe that, by the terms of our contract, we were to inspect and accept at your works in Scranton the work you are constructing for us, when you say it is ready therefor, if found correct. By reason of the great delays, and for other reasons, it seems to be desirable that we go to the additional expense of shipping such work, namely, the trucks, boilers, condensers, etc., from Scranton to the Jackson & Sharp Co., at Wilmington, Delaware, for erection. I wish to ask if you will be willing to so modify our contract as to permit of such testing and acceptance by us after they shall reach the shops of Messrs. Jackson & Sharp, instead of at your own works, as previously arranged."

Plaintiff did not consent to this modification. Its only reply was contained in said letter of May 31st, where, after stating the refusal of the inspector to approve and accept, it says:

"Of course, as it is a part of our agreement that we have such acceptance and approval before shipment of car from our works, we are holding it."

Under the original agreement, defendant was to furnish his special inspector to pass upon all material and workmanship, with power to reject such as should not conform to said agreement; to build the car body and furnishings, and deliver the same to plaintiff at its factory, the plaintiff doing there whatsoever work might be necessary for the completion of the motor car; to pay after acceptance of the motor thus completed, such acceptance to be based on his approval of materials, workmanship, etc., according to the drawings, etc., furnished by defendant, and to be signified before the motor should be removed from plaintiff's works. Even if defendant, under his original agreement, might have claimed a further test, such right was waived by the subsequent acts and correspondence. Three months and a half after the making of the agreement, defendant, while claiming that plaintiff had failed to complete the contract within the time limited, and aiter his inspector had complained that there were serious visible defects in the construction of the motor, and after having learned from plaintiff that said inspector had refused to accept said motor, and after having failed to furnish the car body as agreed, the presence of which defendant admits was necessary to finally test the fitness of the motor, writes to plaintiff in response to its refusal to ship before acceptance as follows:

"All that we are required to do is to accept the work and material when ready to be delivered to me. Hence I hereby accept and approve of all the material and work as placed upon the car ready for shipment to Wilmington."

It cannot be said that plaintiff impliedly consented to a further test at some other factory, or that the alleged implied guaranty survived and was imported into the new contract. On the contrary, the correspondence shows that both parties understood the limitations of the original contract, and the effect of such modification. The defendant had the right to refuse to accept and approve said motor, provided it was not completed within the time limited, or because of defective workmanship and material. He might have had the right, if he had furnished the car body, to insist upon a final test of the completed motor car. He did none of these things, but elected to waive his rights, under conditions known to him, and to accept and approve what his inspector had refused to accept and approve, in order that he (the defendant) might obtain possession of the motor. There was no error in the exclusion of said evidence.

The defendant further contends that the court "erred in holding that there was sufficient proof of the value in the theory of the account stated.” The facts in regard to this exception are as follows: The agreement provided that the total amount of payment for the motor should not exceed $4,000. The plaintiff claimed that the cost of the motor to it, plus the agreed manufacturer's profit, exceeded $4,000. Instead of showing the cost of labor and materials, it proved that, shortly after the motor was shipped to Wilmington, it sent to defendant bills for the motor aggregating more than $4,000, and for extra work aggregating $936.59, and that defendant, having received and retained them, made no response until August 12th, when he wrote plaintiff, inclosing a statement of independent counter charges made by him, which statement and letter credited and admitted the $4,000 item for car “as per contract,” and $388.68 of plaintiff's bill for extras. Thereupon the court charged the jury that in these circumstances, and upon defendant's admission that the $4,000 limit had been exceeded by said bills, and the concession of the $388.68, the plaintiff had made out a prima facie case for $4,388.68. The defendant contends that “the whole statement or admission must be submitted,—both the favorable and unfavorable parts.” The whole of said statement was admitted in evidence and submitted to the jury, except certain items for additional work to put the car in working condition, which were excluded on account of the acceptance by defendant already considered. The different parts of said account have no such connection that the admission of the amount due by defendant should entitle him to an allowance of the counter charges. The claim by defendant that he was entitled to the items therein in no way affects the adinission of the correctness of plaintiff's charges.

The judgment is affirmed.

(113 Fed. 224.)

THE AUREOLE.

(Circuit Court of Appeals, Third Circuit. January 15, 1902.) 1. COLLISION-OVERTAKING VESSELS.

Evidence considered, and held to show that a collision between two steamships, one of which had overtaken and was passing the other in the Delaware river at a place where the water was shallow as ccmpared with the draught of the vessels, was due to the fault of the overtaking vessel in passing too close to the other, so as to create a suction which caused the overtaken ship, which was the smaller of the two, and had slowed to half speed, to deviate from her curse and draw against

the other. 2. SAME.

Where an overtaking steamship is passing too close to another, so as to create danger of a collision, the latter is justified in slowing, or even in reversing, so as to shorten the time of passing, and such action can

not be charged as a fault by the overtaking vessel in case of collision. 3. SAME-CAUSE OF COLLISION-SUCTION.

The force called "suction," exerted by one vessel on another, due to the creation of currents by a moving vessel, and the effect of which is apparently greatest when a larger and faster vessel is passing another moving in the same direction in shallow water and a narrow channel, has been recognized in many cases by courts of admiralty; and a court is not justified in refusing to consider it as a cause in a case of collision between two steamships, one of which had overtaken and was passing the other in a river at a distance of not more than 75 to 100 feet, and where, under the evidence, it appears that the overtaken vessel, though with her helm hard a-port, suddenly sheered to port, and struck the other after the latter had nearly passed.

Appeal from the District Court of the United States for the Eastern District of Pennsylvania.

J. Parker Kirlin, for appellant.
Henry R. Edmunds, for appellee.
Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY, Circuit Judge. This is an appeal from a final decree in admiralty of the district court of the United States for the Easterii district of Pennsylvania (103 Fed. 699), made August 3, 1901, awarding to the libelant the sum of $21.986.05 for damages sustained by the steamship Willkommen in a collision with the steamship Aureole. The collision occurred on January 13, 1898, at about 2 p. m., in the Delaware river, between Pennsville and Newcastle. The Aureole is a British tank steamer, 345 feet long and 46 feet in the beam, and was outward bound with a cargo of crude oil in bulk, taken on at Marcus Hook, about 15 miles up the river from where the collision occurred. Her draught was 25 feet aft and 2372 feet forward. The Willkommen is a German steamer, 325 feet long, 41 feet in the beam, and was also outward bound with a cargo of like kind. Her draught was 24 feet 3 inches aft, and 22 feet 5 inches forward. Both ships were in charge of regularly licensed Delaware Bay pilots. Both ships had weighed anchor at about noon on January 13th, and proceeded down the river in charge of their pilots. The Willkommen, starting first, had proceeded about a mile on her voyage before the Aureole left her anchorage grounds at Marcus Hook. The Aureole is the faster of the two vessels, and overtook the Willkommen at deep-water point, about eight miles from Marcus Hook, but, owing to a tow of barges then in the channel, was unable to pass the Willkommen until both vessels had hauled up on the deep-water-point range; the Aureole following in the wake of the Willkommen on the last-named range for nearly a mile, when she hauled out to the eastward to pass the Willkommen on the latter's port side. On this reach of the river, it appears from the evidence, as well as from the chart of these waters, ma le an exhibit in the case, that there was ample room for ressels to pass each other. According to the testimony of the pilot for the Willkommen, he ran the deep-water-point ranges a little open to the eastward; that is to say, it put his ship a little to the eastward of the range line. No whistles were blown by the Aureole as a signal that she intended to pass, and no signals were given by the Willkommen. No point is made of this, however, as both the pilot and the captain and the other officers of the Willkommen observed the Aureole hauling off to pass, and understood that she was about to do so.

About the time that the stem of the Aureole lapped the stern of the Willkommen, the captain of the Willkommen was aft on the lower deck of the ship. He testified that he watched the Aureole, and knew what she was about to do, and that he waved his handkerchief to her captain, receiving a similar salute in return; that he then immediately went upon the bridge, where, besides himself, were the pilot and the first and second officers, and a competent and experienced man at the wheel. All the direct evidence tends to show

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