Waters v. Harvey

8 Del. 441

• Court: Superior Court of Delaware
• Decided: July 5, 1867
• Status: Published

Opinion

The Court, Gilpin, C. J., charged the jury.

To entitle the plaintiff; to recover, they must show that the injury complained of arose from the default or wrongful act of the defendants in not making the boiler according to the terms of the contract between them. If the plaintiffs, or any one of them, was present when it was completed and put in the boat, and then knew that four additional tubes, or forty eight instead of forty-four, had been put into it, and made no objection to it on that ground, it would be for the jury to say whether it did not amount on his and their part, to an acquiescence in such change and modification in the construction of it, and to a change and modification in the contract also to that extent. And if such was the case, then the plaintiffs could not avail themselves of the change as a breach of the contract, or as a ground for the recovery of damages for the injury complained of; or if .the jury should be satisfied from the evidence, that they, or any one of them, had a reasonable opportunity of inspecting and examining it, and of ascertaining the mode of its construction, the manner in which the tubes were put in it, as well as the character and quality of the work, and of the matter of which they complain, that is to say, the closeness of the tubes to each other and the irregularity or inequality of the spaces in the sheet or head plate between them, and that they were apparent and open and plain to be seen by any one who would take the trouble to examine them, and if after having such opportunities, he or they made no objection, but had the boiler put in the boat and the boat taken away and run for months between Snowhill and Baltimore, without any suggestion to the defendant or defendants of any imperfection or defect in the construction of it, then also, it would be for the jury to say whether the plaintiffs did not under such circumstances, accept it from the defendants as a fulfillment and performance of the contract on the part of the defendant; and if such should be the opinion of the jury in either case as thus presented to them, then their verdict should be for the defendant, even if they should at the same time be satisfied that the leaking of .the boiler was entirely owing to the defects alleged in the construction of it with forty-eight, instead of forty-four flues, and with the unusually small and unequal spaces between them. But if the jury should be satisfied from the evidence, that the injury complained of resulted from the negligence or default of the plaintiff's, or their agents, or servants, as for instance, if it resulted from letting the water get down so low in the boiler that the tubes became heated and sprung and became loosened from the sheet head, or warped and cracked it, or there was not due care taken by them to cleanse and blow out the boiler, and the tubes were thereby suffered to become coated with earthy mat-' ter, and consequently to become heated and loosened, or that the injury proceeded from any other cause than a defective construction of the boiler in the manner before stated, (for no other defect had either been alleged or proved), then also their verdict should be for the defendant. If on the contrary, however, they should be of opinion from the evidence, that there was such a departure from the contract in the construction of the boiler without the knowledge, consent or acquiescence of the plaintiffs which materially weakened it, or increased its liability to leak, and that there was, therefore, any inherent and hidden or secret defect in the construction of it, not discoverable by any person of ordinary care and observation, which materially affected and impaired the strength and value of it, and that the injury complained of resulted from such defect in the construction of it, then their verdict should be in favor of the plaintiff, and they should assess their damages at a sum exactly commensurate with the injury and loss they had sustained by reason of it.

The plaintiffs had a verdict for $730.40.