Boiler Inspection, Insurance company tests and inspections.
September 1, 1949, in a fourteen page report, plaintiff divided its claims as follows: (1) Failure of stay bolts; (2) Loosening tires; (3) Truck and tender wheels; (4) Air brake conduits; (5) Short shipment of hoses and angle cocks. A report by defendant's engineering department replied item by item denying liability. April 21, 1951, plaintiff replied setting forth its claim under the same five items.
The original and first amended complaint filed July 7, 1954, asserts only that 'difficulties developed' (see supra). The second amended complaint filed February 29, 1956, speaks of tires, wheels, air brake pipes, stay bolts and for the first time adds boilers. The memorandum of March 22, 1956, specifies money amounts as to each item.
It will be observed that plaintiff's claim for stay bolts, $ 279,710,86, and for boilers, $ 629,200 constitute the major portion of the alleged breach of warranty and that the warranty period on those items was one year.
It now appears from plaintiff's memorandum that its claim is not for failure to furnish stay bolts and boilers in compliance with defendant's quotations, specifications and approved drawings, comparable to an agreed standard, but that the boiler was of a faulty and inexpensive expensive design which defendant should not have attempted; that the boiler did not meet the technical requirements of a locomotive boiler equipped with a fire box with radial stays; that the drawings were made upon an improper basis without proper consideration of an outmoded technique; that the boilers contain inflexible copper rather than flexible monel metal stay bolts. Plaintiff apparently claims damages for replacement of all 88 boilers and for the cost of replacement with stay bolts of a better quality, larger diameter and different material than those called for in the specifications, such replacements having been made in many instances before those inserted by defendant actually broke. Cf. Rule 9(c).
Defendant contends that the boilers were designed according to ASME rules; manufactured in compliance with specifications and approved drawings; where flexible stay bolts of a designated type were called for by the contract they were inserted as required. A boiler with all flexible stays in the breaking zone would have a lower maintenance cost but the initial cost would be much greater. Such type boiler was not included in plaintiff's quotations. On the boiler manufactured for plaintiff it is to be expected that some stay bolts in critical positions will break and need replacing until the fire box is properly heated and a permanent set obtained; finally, that it built boilers with copper fire boxes and copper stay bolts in accordance with those rules for the government of Spain with satisfactory results.
Defendant's position is that the warranty period as to the last boiler expired May 23, 1950. Plaintiff's total claim for damages as of late 1950 amounted to only $ 40,955.53. Defendant contends that faulty design was not included in the earlier complaint; that the statute of limitations expired before it was first asserted in the pleadings. When did the limitations period commence as to faulty design: from the date of the contract itself, or after reasonable time afforded for inspection and discovery?
Certainly plaintiff's claim has been given different emphasis if not placed in a substantially different area.
Do plaintiff's pleadings comply with the minimum requirements? We think not. 'The cases are uniformly to the effect that a contractor who builds according to the plans and specifications is not responsible for results.' Mannella v. City of Pittsburgh, 1939, 334 Pa. 396, at page 400, 6 A.2d 70, at page 72.
See Tate-Jones & Co., Inc., v. Union Electric Steel Co., 1924, 281 Pa. 448, at page 453, 126 A. 813, at page 815, '* * * the specifications -- a part of the contract * * * -- were prepared by the plaintiff, submitted to defendant, and the offer accepted. The builder was therefore bound to strictly comply with the provisions set forth in constructing the furnaces, but, if this was done, he satisfied his obligation, and was not liable for results obtained, except as expressly or impliedly warranted. 9 C.J. 746; Filbert v. (City of) Philadelphia, (1897) 181 Pa. 530, 37 A. 545; Harlow & Co. v. Homestead Borough, (1899) 194 Pa. 57 (at page 60), 45 A. 87; Wiggins v. Columbian Fire-Proofing Co., (1910) 227 Pa. 511 (at page 520) 76 A. 742'; Canuso v. City of Philadelphia, 1937, 326 Pa. 302, at page 309, 192 A. 133; and see The St. S. Angelo Toso, 3 Cir., 1921, 271 F. 245; The E. 270, D.C.D.Mass. 1927, 16 F.2d 1005, at page 1006; Tinius Olsen Testing Machine Co. v. Wolf Co., 1929, 297 Pa. 153, at page 159, 146 A. 541, 72 A.L.R. 718; Seitz v. Brewers' Refrigerating Machine Co., 1891, 141 U.S. 510, at pages 518-519, 12 S. Ct. 46, 35 L. Ed. 837, the only implication is that the machine would perform the work it was made to do; Pullman Palace-Car Co. v. Metropolitan St. Ry. Co., 1895, 157 U.S. 94, at page 107, 108, 15 S. Ct. 503, 39 L. Ed. 632; Roebling's Sons Co. v. American Amusement & Construction Co., 1911, 231 Pa. 261, at page 270, 80 A. 647; Albree v. Philadelphia Co., 1902, 201 Pa. 165, 50 A. 984; Weimer v. Clement, 1860, 37 Pa. 147, at page 149; 46 Am.Jur.Sales, § 352.
Cf. the language in Filbert v. City of Philadelphia, supra, 181 Pa. at page 545, 37 A. at page 546, 'This defect * * * was not due to defective material or workmanship in its construction. To hold the plaintiffs answerable * * * would be to hold them as warranting that the reservoir should be * * * perfect * * *, notwithstanding that its defects might be due entirely to * * * its specifications,' and that in Tate-Jones & Co., Inc., v. Union Electric Steel Co., supra, 281 Pa. at page 454, and see 455, 457, 126 A. at page 815, 'It further contends that the designs, having been prepared by the plaintiff, there is an additional implied warranty that the work shall be done so that upon completion it may be used satisfactorily and economically, but this is not what the contract provided. * * * There was no proof of any contemporaneous parol agreement broadening the responsibility of the plaintiff, which induced defendant to accept the proposal. We are not, therefore, concerned with alleged defects in design and workmanship, but only with the question as to whether the terms of the guaranty were complied with.' As to pleading fraud, see F.R.Civ.P. 9(b). As to warranties, see 69 P.S.Pa. Tit. Sales, §§ 121 (express), 123 (implied), 124 (fitness), 259 (acceptance); Uniform Commercial Code, effective in Pennsylvania July 1, 1954: 12 A.P.S. §§ 2-313, 2-314, 2-315, 2-316, 2-317, 2-605, and Pennsylvania Annotations. As to warranty of fitness, see also Jones & Laughlin Steel Co. v. Wood & Co., 1915, 249 Pa. 423, at page 432 (but cf. Id. at page 425), 94 A. 1067; Wright v. General Carbonic Co., 1921, 271 Pa. 332, at page 336, 114 A. 517; Griffin v. Metal Product Co., 1919, 264 Pa. 254, at page 256, 107 A. 713. As to proper notice, see Wright v. General Carbonic Co., supra, 271 Pa. at page 337, 114 A. 517; and § 258, supra; Tinius Olsen Testing Machine Co. v. Wolf Co., supra, 297 Pa. 156, 157, 146 A. 541, and see and cf. Wheeling Stamping Co. v. Birdsboro Steel Foundry & Machine Co., 3 Cir., 1957, 245 F.2d 753.
'* * * It is well-settled law that if a thing be ordered of the manufacturer for a special purpose, and if it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose. But this principle is limited to cases where a thing is ordered for a special purpose, and must not be applied to those where a special thing is ordered, although this be intended for a special purpose.' Hill & MacMillan, Inc., v. Taylor, 1931, 304 Pa. 18, at page 21, 155 A. 103, 75 A.L.R. 1022. '* * * but this rule is subject to the qualification that the buyer relies upon the skill, judgment, or experience of the seller.' 46 Am.Jur. Sales, § 346, p. 529.
'As a general rule, notwithstanding goods are sold for a particular use, if the buyer himself understands what he wants and has a full opportunity to acquire a knowledge of any fact necessary to enable him to form a correct estimate, and selects such goods as he deems adapted to the intended use, there is no warranty of their fitness for such use.' 46 Am.Jur. § 348, p. 532. '* * * where a known, described, and definite article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described, and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer * * *.' Jarecki Mfg. Co., Ltd. v. Kerr, 1895, 165 Pa. 529, at page 534, 30 A. 1019, at page 1020; 44 Am.St.Rep. 674; see Williston on Contracts, Rev.Ed., Vol. 4, §§ 989, 990; 46 Am.Jur. Sales, § 349, 353; and see Frigorifico Wilson De La Argentina v. Weirton Steel Co., 4 Cir., 1933, 62 F.2d 677.
'Where an article is ordered for a particular purpose, even though the seller is the manufacturer, the implied warranty of fitness does not extend beyond an obligation on his part to furnish an article reasonably fit for the disclosed purpose, and does not impose on him a duty to furnish the best article of its kind. * * * an implied warranty of the fitness of a machine to do a particular work does not include a warranty that it will do the work as rapidly or economically as some other specified machine. Such a covenant can be introduced only by express contract. 46 Am.Jur. Sales § 350; Davis Calyx Drill Co. v. Mallory, 8 Cir., 1905, 137 F. 332, at pages 334, 338, 69 L.R.A. 973.
'The raising of an implied warranty of fitness depends upon whether the buyer informed the seller of the circumstances and conditions which necessitated his purchase of a certain character of article or material, and left it to the seller to select the particular kind and quality of article suitable for the buyer's use.' Davenport Ladder Co. v. Edward Hines Lumber Co., 8 Cir., 1930, 43 F.2d 63, at page 67; Texas Motorcoaches v. A.C.F. Motor Co., supra, 154 F.2d at page 93.
'The existence or nonexistence of an implied warranty of fitness for a particular purpose must, and necessarily does, depend upon whether the buyer relies upon the skill or judgment of the seller * * *.' 46 Am.Jur. Sales § 348, pp. 532-533; Texas Motorcoaches v. A.C.F. Motor Co., supra, 154 F.2d at page 93; Demos Construction Co., Inc., v. Service Supply Corp., 1943, 153 Pa. Super. 623, 627-628, 34 A.2d 828; Hartford Battery Sales Corp. v. Price, 1935, 119 Pa.Super. 165, at page 170 et seq., 181 A. 95; Maryland Cas. Co. v. Independent Metal Products Co., 8 Cir., 1953, 203 F.2d 838, at page 844.
Finally, see and cf. Bechtold, to Use of Heating Service Co. v. Murray Ohio Mfg. Co., 1936, 321 Pa. 423, at page 430, 184 A. 49; 164 A.L.R. 1321, 168 A.L.R. 389.
While the plaintiff plead a breach of warranty stating that 'because of such warranty and guaranty plaintiff was induced to and did enter into such agreement', it afforded little notice, if any, as to the nature of its claim as to boilers and stay bolts. An amended pleading, in the light of the foregoing, should make its position more clear.