Transcript of Record — Columbus Constr. Co. v. Crane Co.

Supreme Court brief1899

Ask Donna

What actually matters in this document.

Text

‘TRANSCRIPT OF RECORD.

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1808.

No. 462.

THE COLUMBUS CONSTRUCTION COMPANY, PLAINTIFF

IN ERROR,

Us.

THE CRANE COMPANY.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR

THE NORTHERN DISTRICT OF ILLINOIS.

FILED OCTOBER 27, 1898.

(17,047. )

INDEX.

Eee

IR eats 3h 4 40's koe as 8 SRY OP

one for Comte. . 2.6 6. 6. ss

PPR eT er etree

Declaration.

Copy of “Account sued. ORs «cans

Copy of Agreement sued on, dated June 28, 1890 .

Letter of June 20, sit to C. E. - Hequembourg, from

Crane Company.. ne ‘

Exhibit B— Agreement in : blank.

Bill of Particulars. Says

Demurrer ...

Hearing on Demurrer . :

Order of Nov. g, 1891, “overruling demurrer, excepting ‘third

“and fourth counts.

Order of Nov. 23, 1891, vacating ‘order at Nov. 9, ‘1891, sus-

taining amended demurrer, and ierpenees, ee ha

Judgment of Costs, Nov. 23, 1891.

Demurrer to amended declaration. .

Order of October 26, 1892, overruling demurrer ‘and ‘ruling

that defendant plead thereto .

Stipulation as to change of counsel for plaintiff. . eins

Order of April 7, 1893, allowing withdrawal of appearance of

counsel for plaintiff and substitution for same.

3 eee ars rm

Amendment to declaration .

Additional counts .........

Trial .

Affidavit of Chas. ®. Holt ..

Verdict .

Hearing of motion for i new , trial.

Opinion.....

Judgment, March 6, 1895 ..

Order of October 5: as allowing Plainti to file mandate. .

Mandate.. beaks ae ieee Le Oe ERA Oe wes

Second trial. ‘

Order of December ts, 1897. allowing defendant to file amend-

ment to plea ........

Amendment to plea......

Second trial resumed. ee a ce ee CELT PE mee

Verdict on second trial. . . phates paaeadace: te

Judgment on second trial, “March 2 a 1898. 86

Order of April 13, 1898, extending time to file bill of excep-

oo ere 87

Stipulation as to extension of time for filing bill of exceptions 87

Bill of Exceptions: 88

Plaintiff's Exhibit A—Contract between Columbus Con-

struction Company and Crane ‘islanetcces dated June

28, 1890.. . 89

Exhibit A—Letter of June : 20, 1890, | from C Crane : Com-

pany to C. E. Hequembourg.. Te Se eT a

Exhibit B—Agreement in blank ..................... 92

Deposition of Charles E. Hequembourg.. ievirenoow - e

Plaintiff's Exhibit C—Approximate estimate. » ee

Plaintiff's Exhibit D 1—Order of July 23, 1890, from C.

E. Hequembourg to Crane Company .... :

Plaintiff's Exhibit D 2—Order of July 23, 1890, from ‘si

E. Hequembourg to Crane Company..... ....... 95

Plaintiff's Exhibit D 3—Order of July 23, 1890, from C.

E. Hequembourg to Crane Company............. 95

Plaintiffs Exhibit D 4—Order of July 31, 1890, from C.

E. Hequembourg to Crane neti case chawiene

Plaintiff's Exhibit D 5.. gates skew ien 2

Plaintiff's Exhibit D 5—Letter of ‘Aug. 9, "1890, from C.

E. Hequembourg to Crane Company.............. 97

Plaintiff's Exhibit D6—Order of Aug. 9, 1890, from C.

E. Hequembourg to Crane Company............. 97

Plaintiff's Exhibit D 7—Order of Aug. 20, 1890, from C.

E. Hequembourg to Crane Company..... ....... 97

Plaintiff's Exhibit D 8—Order of Aug. 21, 1890, from C.

E, Hequembourg to Crane Company.. .

Plaintiff's Exhibit Dg—Order of Sept. 9, 1890, from e.

E. Hequembourg to Crane Company.. 98

Plaintiff's Exhibit D 10o—Order of Sept. 12, "1890, ‘from

C. E. Hequembourg to Crane Company. . 99

Plaintiff's Exhibit D 11—Order of Sep. 20, 1890, “from

C. E. Hequembourg to Crane Company.. 99

Plaintiff's Exhibit D 12—Order of Sept. 23, 1890, ‘from

C. E. Hequembourg to Crane Company.. 99

Plaintiff's Exhibit E—Order of July 18, 1890, ‘from C.

E. Judson to Crane Company.. 100

Plaintiff's Exhibit F—-Statement showing pipe « ordered d by

Crane Company in 1890.. . . IOI

PAGE.

Plaintiff's Exhibit G—Statement of pipe received from

Crane Company.. 101

Plaintiff's Exhibit H—Statement showing r rec ceipts ‘of pipe

from Crane Company, by months ..... . 103

Plaintiff's Exhibit K 1—Letter of Nov. Is, 1890, drom

Crane pemaenid to Columbus Construction Com-

pany. CeO Tae Ore

Plaintiffs Exhibit. K 2—Letter of Nov. 28, 1890, from

Crane Company to Columbus Construction Com-

Ua y isa s Skala Ke aoe Awate st OK < os ohne: po Oe

Plaintiffs Exhibit K 3—Letter of Dec. 4, 1890,

from Crane atta to Columbus Construction

Company.. ry eee ey me

Plaintiff's Exhibit K e— —Letter ‘of Dec. g, 1890, from

Crane Company to Columbus Construction Com-

pany... Hey cake ey ee

Plaintiff's Exhibit K Gundetter of Dec. 23. 1890. from

Crane Company to Columbus Construction Com-

pany... aD wig yk Pe EK RK eA eo eee ee

« Plaintiff's Exhibit K 6—Letter of Jan. 9, 1891, from

Crane Company to Columbus Construction Com-

any. 106

Plaintiff's Exhibit “aa Statement of cash ‘paid to Crane

Company. . . 106

Plaintiff's Exhibit K—Statement of pipe returned to

Crane Company .. Hate aed ane x eo cae ee

Plaintiff's Exhibit J—Letter ‘of Oct. ‘*. hii from C,

E. Hequembourg to Crane & cee esi are see

Testimony of Alfred Smedley .. ........ ty ea ne

‘ ‘* Charles E. Hequembourg. . “115, 185, 258, 465

Letter of Instructions from Columbus Construction Co.. 118

Testimony of James S. — A Re ee ee ee ere trae f

" ‘+ Ebenezer Hill.. iin cca acorn

es ‘© David Fleming... 126

Defendant’s Fleming Exhibit p -Letter of Nov. rm 1897,

from J. H. Barnard to David Fleming.. 128

Defendant's Fleming Exhibit B—Letter of Oct. 9, + 1897,

from Button to Dave Laveen eae 129

Seatienony baa noone Pitt.. Mies ik nind eV rwry ss Gouyie way ee

Elias Fleming .. Rae EN bares Ue eae ee eee

mae Marshall. Wiad Me we as Ad ace ke

“ ob a SU as Sk-a-a V5 Viale 4 ooo Ph eae Ae es

me ‘* Clement iba <5 os/sb sa ce ect ndisvak 134

ad ce ke A rae i

‘Pestmony of Brewer Button.. in wh ye ees wae he ee

v3 Ebenezer Hill (recalled)... 2... .2 0020.00 138

‘* Thomas Flaherty.. St Uy AS ee ea

“ oF EG Sr crS SERA e odes ie vas. vee SQM

es ae, i

“ {4 A TE SEIN 0 SS 6 eek eect ees ce QB

“4 + -SRCHIOR EPMIONG. iw see ewes cecenss They

$s oer ve | | eee eet Pee eS eT ae,

Me <6 TOE ig io vo 08 eos vo wa wn eee sy BES

= ‘© William 2 on gaa Serer yey.

se ‘“ L. A. Stanford. FLUTE see Ve ka eee

* ‘+ Henry Coyle. . Poorer omer | a

* ‘+ William Quinn (recalled). . Pa ear hie yis,o aD

ms Elwood Haynes..... erecta *

om is é Chee: E. Hequembourg (recalled). image: See

ig ‘* William Tarrant... .. enw Sica tea ens

Se ‘* Frederick “Seen ee 209

ee ee eee ere re ere.

i NE Oh WS 6g 85 6 04 Seats meek ccles. co OEP

* TE a, ROE icc k cc hese yest onne B96

“ we | ee Peer eer met

RPEOCURIOU GE TN IN a ng 5 Seo ct we ne vense aces eee 220

" i a Ca hoa se ls ve cs ta wa ncaa’ wwe aD

oF Web sdese Ee eT ee ee Ere See Tere ee

“ cs pi dial ae ce 22

“ a a oar ere

as ‘- Joseph W. ea Skane ewe peek te a eins ee

4 ‘** R. S. Duffield. SEAMS RSS ae oe ee

as ‘+ Joseph N. CORSE SRS SPS EET PC ean ane aN) 231

- we a a er oe cere Se

a ee et eee rie

" ceil Ut EE a rear ranpet ees

x5 ‘* A. B. Daily, Jr. Peart Wa KS Ce ee ae ee

‘* A. B. Daily * Ce ORR ae Rieti 243

sie ba DR ree ie cel we gk yw ue ein ae ee

e ‘- James Cuttel............. roe eee eee

a ap oN EE oe area a

= at OO ere ea es

I hin c aiwk cw d «cas a ALKSlb 8a tele he

en, a Waldieae bey bee os Cea a

+ i PE CORSA. 6 ead ics wees wee en es eee SD

RE I Be aks Cv Taare Sew eS een cass RD

I CE Me sc. etidich bine ka MaA Ua bheie he wean Oe

Kennedy Exhibit 7..

" > PR ed ae Bde vin Pe aoe

Testimony of Henry Coyle.. Lee Gwhaaeta sé %

Exhibit Z .

Coyle Exhibit 10—Map (referred wo). ski cee as

Testimony a F. P. Leonard.

- ‘ Clayton H. Tobias.

Exhibit 1—Statement.

Testimony “ Chas. E. Hequemboury (recalled) Blade said,

se ‘* John E. Small.

‘Simon S. a i. ees is

“ OR IR 95. 5.5 5s woke ew ne elem e koa ee 55m

ee Win: NVEISOM. .c.5 ex

ee WO EU EANE 2 cook GRR Os Wy be ed te

- WE Sn Ka 6a Sai dale

+ te) i a Ne a] 20 1 2) rr a ase

OSCE te PEROB ES cax oe Sioa hw ete ce inks Sa atanwietec ee beste

<% ** Lawrence Casbon.........

Ds ey INS aoa Shs nk SR dos. 6 ee ee ak

a I NS 5 aa as x Seen aoe Sen bee

“ sp er reer re aera ee

“6 oh EN sb s0s a9 a's he na ee we ae GO

us ‘* Charles Casbon....

es eee WV Se OUROS. cs Son kk ba

as *: Ebes 1. Phillipe. .....

de CS CREA Eo PURORIIOES Co ba ais Seiwa ne Reais vs

* ot EE IE 05 is o> So ke WE e Vee eee

ai Wee IEEE Ce beers id mann se ek Rae ee Nes

" lf! re ree rere eee

‘© Walter wena :

- M. i ald

Letter a Dec. 31, 1890, from e 1 “Yerkes eee Com-

pany..

Letter cf Jan. 2. 1891, ‘from ‘Crane Company et. .

Yerkes. .

Letter of Jan. x 1891, from C. T. Yerkes to Crane Com-

pany .

Letter of Jan. 21, 1891, trom C. T. Yerkes to Crane

. Company. .

280,

Letter of Jan. 23, 1891, "from Crane Company to C. T.

Yerkes.

Letter of Jan. 24, 1891, from C. T. Yerkes to Crane

Company .

NY NNN HNN WN WN

WwW VnMnMom

RFROAEN AQAA

Oo ©

PAGE.

Letter of Jan. 27, 1891, from Crane Company toC. T.

2, SE ray rege es Bee © tore ee ene a ere ae

Letter of Feb. ‘12, 1891, from C, T. Yerkes to Crane

sheen gaan RON TS ore CONT Oe hohe Rew

Letter of Feb. . 1891, from Crane Company to C. T.

Yerkes.

Letter of Jan. 17, “1891, from Crane © Company | to. c *

Yerkes. ‘ ‘ iv eens

Testimony - Mansfield B. Lea.

* John Kern.. is UNE es wecke Lena kerbs

* peowerd: ©. Bishop.. TUEarCeer eer. wy 4

‘ Thomas J. Bray.. ihe gare 335,

Ph E, Lyon (recalled). . eee en ee

‘* Edward M. Wolf..

‘* Daniel J. Schroeder...

‘* James A. Corcoran............

** Rufus cas ae *

‘* James James. .

* John Carey.. chi

‘ William D. Greer Hes

‘* Albert Pedrick ....

‘* James Ewing........

‘+ James yea bea

‘' W. H. Chester..

‘* William Coffey ..

Agreement of March 12, 1892, between American Tube &

Iron Co. and Columbus Construction Company . '

Contract of July 28, 1891, between American Tube & Iron

Co. and Columbus Construction Company.... .

Contract of August 13, 1891, between Columbus. Con-

struction Company and National Tube Works Company

Testimony of Mr. Bishop (recalled). .

Bishop Exhibit—Statement showing saving to ‘Colum-

bus Construction Company on asus of eight-inch

pipe.... ptyeniea ah ey %

Bishop Ex shibit—Agreement of July 12, 1890, between

Morris, Tasker & Co. and Crane Company .

Bishop Exhibit 3—Agreement of July 24, 1890, ‘between

Reading Iron Company and Crane Company..

Bishop Exhibit 2—Agreement of August 6th between

Paige Tube Company and Crane Company..

Letter of August 20, 1890, from Crane Company to Co-

lumbus Company...

Letter of August 21, 1890, ‘from Crane e Company t to Co-

lumbus Company .. é :

Vii

PAGE.

Letter of August 22, 1890, from Geo. L. Forman, Secy.,

to Mr. Hequembourg. . 320

Letter of August 22, 1890, ‘from Crane ‘Company ‘to Ce

lumbus Company..... 321

Letter of August 23, 1890, from ‘Crane ‘Company to Co-

lumbus Company..... 321

Letter of August 28, 1890, ‘from Crane ‘Company to Co-

lumbus Company..... 321

Letter of September 6, 1890, from ‘Crane ‘Company to

| PRUETT CE aA eee eee

Letter of September 12, sees from Crane Company to

Columbus Company. . iV KRC MLTR EC us aes 2 Oe

Letter of September 27, 1890, “from Crane Company to

Columbus Company..... 322

Letter of October 1, 890, from ‘Crane ‘Company to Co-

lumbus Company.. 323

Letter of October 9, 1890, ‘from ‘Crane > Company t to Co-

lumbus Company.. eres ee rvs <a are

POMRRERY O5 5B. 4. Siteking. . La Kw eam Ginko a aie er Salad a

oP. Pe See. Piredck ste eee ea oe

om hi. Gilbert (recalled)... ary 329

Letter of January 16, 1891, from Grane Company to é.

Ws WO od Sawa nes 330

Letter of no date, from =. ¢ “Yerkes to ‘Crane Company. 332

Letter of January 16, 1891, from C. T. Yerkes to Crane

oe eT SORE ere eee eee ee

Testimony of Jacob Schaialink.. Per reLeeTe rer einy eet

he is as Bray (recalled) .. oS ee Aa wg ao OR

eee SF Se Tr rr eS

= si Chan. F. Poateb..... oo c0c cs sa: OR eee es

Si By. Ape) MAMI x x chek 35.5 Kc win ed SAC eas 462, 469

Daniel Harrington...... . 351, 462

Contract of June 5, 1890, between Columbus Construction

Company, and Indiana Natural Oil and Gas isle 352

‘* Exhibit C ” to Contract.. x« 990

Act of the General Assembly of the State of Indiana, in

force March 4, 1891.. OSES eee Te ee Ee

‘Reemony of Geo. H. Reynolds. ee, TESTE ORE CRS

* Lyman E. Costey . feed Silene Anon Ad he

: ‘* Christ Olds. Re een ie a eae

: William M. Potter. 379

Letter of May 25, 1891, from Williams, “Holt & Wheeler

to Columbus Construction Company.......... 379

VERS

Deposition of Anthony H. Bahle.................++4+++++ 380

ad ae ON ee ee eee

“ i . Gk s ewe ers ek be ee bhas ce oN wees SEO

- ae er er re

wn ef Ss re ae eee. | |

“ +> Si SE es hs as So be enrecer ance cecdas SOG

- tS PNG sols ys cteecseeeeatnnsnsn Seg

“ ES CR bs es tsise ip aweh ie scascs OO

a hr i Gas 5' 45 bs wk base ees de een ce See

on Ei i Ds sis adh ce wy ws Veloce cs 5. Se

a EE eer

es SE be hoes haere baw ese es OD

es A UR is atthe dve bes eases vosas « SO

ss “+ SORE TIRONOTND 602. 6 sep ee wees ewe. 390

“ + ED habbo rien tadaivtnusiss.

ae phe TR ee

ee 20 Be MR AL Soke ei devevescewwsvecésevess. SM

Ses | ere eereee rer Tie eT ETE ree

09 OO BE NOE ince vc etc rccccessvesvare 392

a ce 6 . ., ee r eee r eee rere

* ae Sr ee rr

“s FR EOE co seit ox sess ve tases seve on SOS

“9 ee ers Te

“s ie

ss NE 668k ob ss kates cr sch sees cncesn: SOP

“ ee I Soop vc BSG bs ash ne tdcend oo SO

”? gk Se er

on | a eres

ia A ND oo nb tho Caen cavccsved ese SD

ais re

- ie | rr

“ oe Oh a

“s OO id bs Sha Awe i t e8 owe ore pds bn

oe NE ee ee

ste I i eke eee nha eS) ene owes ee

* wi ee

- rin Se 2 -a'6 on cede 4 hisie-ee am sae nk he ve TOD

“ 09 I ski Kb eee bees se ee ceed ease. SG

" SE i ak Sees acid oeere sect en QS

“ we. fk | Se Torre

= oh SR i Sg Gd wing's Sa ka ba swe oe cees Oe

a oe Ces. Bs SME, 60° Pe ee

Testimony ‘* H. P. Bishop (recalled) .. ie phen kha oe ee

PAGE.

Letter, no date, from Spang, Chalfant & Co., to Crane

Co. b> alga Sain Se

Letter of Aug. 25, 1890, from ‘Chas. A. ‘Lamb, $s M., to

Mr. Bishop. . eiatiy at ak sik 5: tg in ne cy

‘Testimony of James Sheehan . Mit sow eelicsis euayiencc: Se

‘* Llewellyn Morton.... hE AOA Ok cmos agen Mal ata

** F. P. Leonard. ee ee Ee eer

‘* Eugene F. | EE ean 411

" ae EE ee ee ae eee ere

- co... re ees er ere aie |.

ae a ee eet ee SS

e ESE CT ee Teer eee

4 * Ee < Smith. a ee ee |

* Elias Flemming... Serer me |:

Letter of Oct. 3, 1890, from ‘Geo. 7 Forman, Secy., to - :

I ag spk on ns bee win kk da kK Raw s a. OO

Letter of Oct. 10, 1890, from Geo. L. ee

to Pittsburg Tube Co....... aan an baew, Me

Letter of Oct. 15, 1890, from Crane rou to Pittsburg

, i 4’ ee i teeta at aaa: ee

Letter of Oct. 18, 1290, from Crane Co: to Pittsburg

: EE a

Letter of Dec. 4, 1890, from Crane Co. to Pittsburg

RES SE E aS ne aes ae ee 421

Letter of Jan. 6, 1891, from Crane Co. to Pittsburg

RE ea Gan, 6g i ea tes EK —

Letter of Oct. 2, 1890, from Geo. L. Forman, Secy. ‘

P.<. Seek, Drees... ..... a oe

Letter of Oct. 15, 1890, from Gen & Forman, Secy. to

Reading Iron Co..... 423

Letter of Oct. 25, 1890, from Geo, i, Forman to F. i.

Semtek ...... 424

Telegram of Oct. 25, 1890, ‘from F. c. ‘Smink to Crane

Company . OI Se a ee ere eee

Letter of Oct. 25, 1890, from Geo. L. Forman to F. C.

| ra St ae caters Cone SA ole hereGie Rimi cats nn

Telegram of Nov. 15, 1890, from Geo. L. Forman to F.

C. Smink . EMC eh kas ona ewer ks BES

Telegram of Nov. 14, 1890, from F. C. Smink to Geo.

I ee Sila meek: OS 60509.¥s 10d oak a ¥-0a.0 GEE

Telegram of Nov. 17, oe from F. C. Smink to Geo.

L. Forman..... 425

Letter of Nov. 29, 1890, ‘feom Crane Co. ‘to F. << Smink 425

Letter of Dec. 29, 1890, from Crane Co. to F. C. Smink 426

Letter of Dec. 30, 1890, from Crane Co. to Reading Iron

1 Mn (2 rip Siete sin 'wre Sak phe WA KERR Ee ERS RRS

Letter of Jan. 2, 1891, from F. C. Smink to Crane Co..

Letter of Jan. 19, 1891, from F. C. Smink to Crane Co,

Letter of Jan. 21, 1891, from Crane Co. to ee Iron

Company .

Letter of Feb. 19, 1891, ‘from >. c; ‘Smink to A. M. Gil-

bert, Vice-President, Crane Co..

Letter of Feb. 21, 1891, from Crane Co. ‘to F, e Smink

Letter of Feb. 24, 1891, from F. C. Smink to A. M. Gil-

bert, vice-president. . Siaika eee ee ONS tha

Letter of Feb. see 1891, from A. M. Gilbert to FO.

Smink. bie Ske bii ate ath OR AES he eb.

Letter of March 2, 1891, ‘from F. C. Smink to A. M.

Gilbert. .

Letter of Oct. 3, 1891, from Geo, / Forman. Sec’ y..

Paige Tube Co......

Letter of Oct. 6, 1891, from. Paige Tube Co. to ‘Gao. a

Forman.. COUN beatae Noo ses wd wees}

Letter of Oct. 11, ‘ists from Crane Co. to Paige Tube

RAS Si a'ss

Letter of Oct. 15 1891, from Geo. . ‘Forman to A. 3

Paige... 1...

Letter of Dec. 31, "1890, from Crane Co. to Paige Tube

Letter of Jan. 5. “1891, ‘from Paige Tube Co. to Crane Co.

Letter of Jan. 7, 1891, from Crane Co. to Paige Tube Co.

Letter of Jan. 13, 1891, from Paige Tube Co. to Crane Co.

Letter of Dec. 2, 1890, from R. T. Crane, Pres., to Na-

EE Nica ce a wea yea pee Wome naa oes we

Letter of Dec. 5, 1890, from Chas. A. Lamb, L. M., to

R. T. Crane, Pres’t. pis exh ies

Letter from E, C. Converse, oa - to National Tube

| PEE OR age ay oes

Letter of “Dec. 6, 1890, from: R. tT Crane, Prest., to

Chas. A. Lamb, G. M.

Letter of Feb. 9, 1891, teonk Nationa! Tube ‘Works Ce.

to Crane Co....

Letter of Feb. 10, ‘1891, from Crane ‘Go. ‘to ‘National

Tube Works Co. 4's

Letter of Oct. 9, 1890, from ‘Crane Co. to ‘Spang, Chal-

fant & Coe:.....

Letter of Oct. i6, 1890 from Spang, | Chalfant & Co. to

Geo. L. Forman. ree

PAGE.

. @a7

428

429

431

432

-- 434

- 435

486

. 437

. 438

438

440

441

442

. 443

. 444

- 444

445

446

447

.. 447

PAGE.

Letter of Jan. 6, 1891, from Crane Co. to Spang, Chal-

fant & Co. ‘ 451

Letter of Oct. 7, "1890, from ‘Crane Co. to Morris, Tasker

Ree 45!

Letter of Jan. bP 1891, from Jonathan Rowland to

eee MTC EE TORT ORT OTe eT CL eae |

Letter of Jan. 21, 1891, from Crane Co. to Morris, Tasker

Letter of Jan. 28, ‘1891, from Morris, Tasker & Co. to

Jf aS See Teer er eT or ea ee ee ee ee

Letter of Jan. st, 1891, from Crane Co. to H. Agnew... 455

Letter of July 7, 1890, from Geo. L. Forman to Pitts-

burg Tube Co...... SUCK A es

Letter of July 9, 1890, from Forma in to Lynn Terere et ef!

Letter of July 8, oo from Pittsburg Tube Co. to Geo.

L.Forman..... 456

Letter from Geo. L. “Forman to Paige Tube Bs: Mortis

Tasker & Co., and Reading Iron Co..... xp .

Letter of July 11, 1890, from ses Chalfant & Co.,

Geo. L. Forman rer ore

Letter of July 15. 1890, from Cec O. a oh ‘Forman, rm Spang,

‘;Challant & Co........ 458

Letter of July 12, 1890, from Pittsburg Tube Co. to Geo.

L.. POrmian..... 458

Letter of July 16, 1890, from Geo. ‘ Forman to Spang,

Chalfant & Co...... 458

Telegram of July 17, 1890, from Spang. ‘Chalfant & Co.

to Geo... L, Forman... ... 460

Letter of July 19, 1890, from Pittsburg Tube Co. to Gao.

L. FPORMman..... 460

Letters of Sept. 27, 1890, from Geo. - Forman to Pitts-

burg Tube Co., Paige Tube Co.. Reading Iron Co.,

Spang, Chalfant & Co. and National Tube Works Co... 461

isnatevitgtas Se Rav PRO < cna Neve se We oA 9k He Ox Ree ee

Anderson Johnson. . ReUet Ip te eet eee eee

si ** Daniel congg gay C4 acne Cea hs o Cee ee

" ‘© M. J. Berry. Sit Nin sor aw asap lie ase isk aR nea tet

sie “ FL K. Wing.. Re teres

1s ae Hequembourg (recalled). Teeetee

‘: B. T. Kennedy.. cahe pricy Wate 8 we To

" ‘© H. P. Bishop.. sb bia Wah NOIRE a aes one be

id ‘* Richard T. Crane... SO we Sas aeaa na ay

” ge or (recalled) RPITRT ET TTT ee

cision 6 Mees. ; po USE OR Seer owas ev ney 6) ee

XII

PAGE

Exceptions of Plaintiff to charge to Jury............... 489

Request of Plaintiff as to — to ean Pie ae hiegeds~s ae

Verdict . FESR aaa ews Be

Petition for Writ of Error. Pawar em PION Newbee ko ake « SOR

Assignment of Errors.. ; 503

Contract of June 5, 1890, between Columbus Construc-

tion Company and Indiana Natural Gas esis atl in-

troduced in evidence on page 352.. ..... Cine a: eee

Exhibit C to said contract found on page 356. iw Gas

Appeal Bond. . =33

Order of Aus —asmtd—: tl ‘that Writ of Error ‘Issue. 533

Precipe for Transcript...... i<aa 988

SORE CSSA rar ae ee mn,

Clerk’s Certificate... UE SS a ee S|

IIE ah that ie ed arg IS kav hea vee dee 53D

IN THE

UNITED STATES CIRCUIT COURT,

NORTHERN DISTRICT OF ILLINOIS,

NORTHERN DIVISION.

COLUMBUS CONSTRUCTION COMPANY )

22015. VS. ASSUMPSIT.

CRANE COMPANY. :

Mr. GEORGE HUNT,

Mr. J. R. CUSTER,

Mr. S. S. GREGORY,

Attorneys for Plaintiff.

Mr. EDWIN WALKER,

Mr. NORMAN WILLIAMS,

Mr. CHARLES S. HOLT,

Mr. ARTHUR D. WHEELER,

Mr. RSSSELL M. WING,

Mr. THOMAS L. CHADBOURNE, Jr.,

Mr. HOWARD E. LEACH,

Attorneys for Defendant.

2 Pleas in the Circuit Court of the United States for the North- Pleas.

ern District of Illinois—Northern Division, begun and held at

the United States Court room, in the City of Chicago, in said

district, before the Honorable William H. Seaman, District

Judge of the United States for the Eastern District of Wis-

consin, on Wednesday, the second day of March, in the year

of our Lord, one thousand eight hundred and ninety-eight, of

the December term of said court, 1897, and of our independ-

ence the one hundred and twenty-third year. *-

S. W. Burnuam, Clerk.

Columbus Construction Company, .

22,015 VS. Assumpsit.

Crane Company.

Be it remembered that on this day to wit: the twenty-third

day of May, A. D. 1891, came the Columbus Construction Com-

pany, by its attorneys, Gregory, Booth and Harlan, and filed in

the clerk's office of said court, its praeecipe and bond for costs, which

said precipe and bond are respectively in the words and figures fol-

lowing, to wit:

2 Preaecipe—Bond for Costs.

PRACIPE.

UNITED STATES CircuIT Court, NORTHERN DISTRICT OF ILLINOIs.

Columbus Construction Company, a

corporation existing under and by

virtue of the laws of the State of

New Jersey, and a citizen of the

State of New Jersey,

VS.

The Crane Company, a corporation

existing under and by virtue of the

laws of the State of Illinois, and a

citizen of the State of Illinois, de-

fendants. )

The clerk of said court will issue a summons in the above en-

titled cause in a plea of trespass on the case on promises to the

damage of the plaintiff in the sum of one million ($1,000,000)

dollars, and direct the same to the marshal to execute and make it

returnable to the July term of said court, A. D. 1891.

GREGORY, BootH & HARLAN,

Plaintiff's Attorneys.

CuicaGco, May 23rd, 1891.

(Endorsed): Filed this 23rd day of May, A. D. 1891.

Wo. H. Brapbtey, Clerk.

3 BOND FOR CostTs.

UNITED STATES OF AMERICA,

NORTHERN DIsTRICT OF ILLINOIS.

Circuit Court, July Term, A. D. 1891.

Columbus Construction Company

VS. -~Ln Assumpsit.

Crane Company.

I enter myself security for the costs in this cause, and promise

to pay all costs which may accrue to the opposite party, in this ac-

tion or to any of the officers of this court; and in default of pay-

ment by the plaintiff of any costs ordered or adjudged to be paid by

plaintiff, I hereby agree and stipulate that execution may issue

against my property for any costs taxed against plaintiff.

Dated this 23rd day of May, A. D. 1891.

S. S. GREGORY.

(Endorsed): Filed May 23, A. D. 1891.

Wms. H. Brab.ey, Clerf.

Summons—Marshal’s Return. 3

On the same day to wit: the twenty-third day of May, 1891,

a summons issued out of the clerk’s office, directed against the

Crane Company, a corporation, etc., which said summons, to-

gether with the marshal’s return thereon endorsed is in the words

and figures following, to wit:

SUMMONS.

CiRCUIT COURT OF THE UNITED STATES OF AMERICA, |

NORTHERN DistTrRICT OF ILLINOIS, NORTHERN - SS.

DIVISION.

THE UNITED STATES OF AMERICA.

To the marshal of the Northern District of Illinois, GREETING:

We command you to summon the Crane Company, a corpora-

tion, etc., if found in your district, to be and appear before our

judges of our Circuit Court of the United States for the Northern

District of Illinois, on the first day of the next term thereof, to be

holden at Chicago, in the district aforesaid, on the first Monday of

July next, to answer unto Columbus Construction Company, a cor-

poration, etc., of a plea of trespass on the case upon promises, to

its damage, as is alleged, of one million dollars, and have you then

and there this writ.

Witness, the Hon. Melville W. Fuller, Chief Justice of the

Supreme Court of the United States of America, at Chicago, afore-

said, this 23rd day of May in the year of our Lord, one thousand

eight hundred and ninety-one, and of our independence the 115th

year.

[SEAL. ] WILLIAM H. BRADLEY, Clerk.

4 MARSHAL’S RETURN.

] have served the within writ personally, upon the within

named the Crane Company, a corporation, etc., by delivering

to R. T. Crane, president of the aforesaid company, a true

copy thereof this 25th day of May, A. D. 1891.

FRANK Hitcucock, U. S. Marshal.

By Geo. N. Jones, Deputy.

So ee errr rr

SING 5a oxo 0 wa 54 4's een bse. ee

ern ree eran >

PPOCUL cs 4:6 4608 Pe ee ee ee

$2.72

(Endorsed): Filed June 4, A. D. 1891.

Wma. H. BRADLEY, Clerk.

Summo'

May 2

Marshal’

tiled M

1891.

4 ; Declaration.

Afterwards, to wit: on the twenty-sixth day of June, 1891,

came the plaintiff in said entitled cause by its attorneys, Gregory,

Booth and Harlan, and filed in the clerk’s office of said court its

declaration, which said declaration is in the words and figures fol-

lowing, to wit:

DECLARATION.

IN THE CIRCUIT COURT OF THE UNITED STATES, NORTHERN DiIs-

TRICT OF ILLINOIS.

UNITED STATES OF AMERICA, ‘

NORTHERN DISTIRCT OF ILLINOIs.

The plaintiff, Columbus Construction Company, a corporation

organized and existing under the laws of the State of New Jersey,

and a citizen of that state, by Gregory, Booth & Harlan, its at-

torneys, complains of Crane Company, a corporation organized

and existing under the laws of the State of Illinois, and a citizen

of that state, of a plea of trespass on the case on premises.

For that whereas, heretofore, to wit: on the 28th day of June,

1890, the said defendant then and there, to wit: at the city of Chi-

cago, in said district, agreed to sell to this plaintiff and in consid-

eration of the facilities and representations of the defendant made

to said plaintiff, as in said contract alleged said plaintiff agreed to

purchase of the defendant wrought iron standard line pipe, as fol-

lows, that is to say:

Two hundred and sixty milesof eight-inch wrought iron stand-

ard line pipe to weigh not less than 27.48 pounds per lineal foot.

Ten to twenty-miles of ten-inch wrought iron standard line pipe of

weigh not less than thirty-nine pounds per lineal foot, exclusive to

weight of collar. Ten to twenty miles of six-inch wrought iron

standard line pipe to weigh not less than 18.29 pounds per lineal

foot, exclusive of weight of collar. Ten to twenty miles of four-

inch wrought iron standard line pipe to weigh not less than 10.39

pounds per lineal foot, exclusive of weight of collar. Ten to twenty

miles of three-inch wrought iron standard line pipe to weigh not

less than 7.35 pounds per lineal foot, exclusive of weight of collar.

Six thousand feet of five and five-eighths wrought iron standard

casing, and that the price to be paid therefor as aforesaid should

not be more than ninety-one cents per lineal foot for said eight-

inch pipe, the price on the other sizes of said pipe to be in pro-

portion to that price to be thereafter agreed upon between the

parties.

Declaration. 5

Which said price of ninety-one cents should include as a part Dect

thereof two and one-half per cent., whichin and by the agreement a

of the parties was denominated a commission to be paid to said de-

fendant, but was in truth and in fact a part of the purchase price

of said pipe, to be paid by said plaintiff to satd defendant, which

said pipe the said defendant agreed, unless prevented by strikes

and causes beyond its control, to deliver or to secure the delivery

thereof to the plaintiff during the months of July, August and Sep-

tember, at such places as should be thereafter designated by the

plaintiff, and not later than October 1, 1890, and to deliver all the

eight-inch pipe aforesaid, unless so prevented as aforesaid, so that

thirty-seven miles thereof should be delivered in July, not less than

one hundred and twenty-three miles in August, and the remainder

thereof undelivered, in September, 1590, and prior to the fifteenth

day of that month if possible.

For which said iron pipe so to be delivered as aforesaid the

said plaintiff agreed to pay the stipulated price in cash.

And that in and by said agreement so made as aforesaid, it

was provided that said plaintiff should pay cash fer said pipe, and

that all of said pipe should be in conformity with certain specifica-

tions, and certain conditions and tests as to quality for eight inch

pipe, as in said contract was specified, which said specifications

were, as was Said contract, in writing, and were attached thereto

as Exhibit ‘* B,” and that it was provided in and by said specifica-

tions, among other things, that the said eight-inch standard line

pipe should be delivered to the plaintiff and should be made from

soft iron, free from blisters and other imperfections, and guaran-

teed to stand a working line pressure of one thousand pounds to the

square inch, so proved and tested in lines, when tested by said

plaintiff under said working pressure.

And that also said pipe should not be considered as accepted

by said plaintiff by reason of any payments made therefor, so a-

torelieve the said defendant from liability on account of its defects

ive character, until the whole should have been laid and tested in

line and approved.

And that heretofore and after the date of said agreement as

aforesaid, to wit: on the 1st day of July, in the year 1890, at Chi-

cago, in said district, the said defendant company furnished to the

plaintiff a statement showing the prices at which said defendant

would sell and deliver to the said plaintiff the said pipe so agreed to

be sold and delivered as aforesaid, and that the prices so fixed as

aforesaid, were, sixty miles of eight-inch pipe manufactured by the

Paige Tube Company, at eighty-eight and six-tenths cents per foot,

sixty miles of said eight-inch pipe manufactured by the National

Tube Works Company, at eighty-eight and five-tenths cents per

6 Declaration.

foot, forty miles of said eight-inch pipe manufactured by the Pitts-

burgh Tube Company, at eighty-eight and five-tenths cents per

foot, forty miles'of said eight-inch pipe manufactured by the

Reading Iron Company, at eighty-eight cents per foot, twenty miles

of said eight-inch pipe manufactured by Morris Tasker & Company,

at eighty-eight cents per foot, twenty miles of said eight-inch pipe

manufactured by Sprang, Chalfant & Company, at eighty-eight

cents per foot, twenty miles of said eight-inch pipe manufactured

by the said American Tube & Iron Company, at eighty-eight cents

per foot, and also ten miles of three-inch pipe at about twenty-two

cents per foot, ten miles of four-inch pipe at about thirty cents per

foot, ten miles of six-inch pipe at about fifty-five cents per foot, and

ten miles of ten-inch pipe at one dollar and thirty cents per foot,

to which the defendant added the said percentage of two and one-

half per cent. hereinbefore mentioned and referred to.

And that thereafter and on various days and dates between the

date of said contract and the twenty-fourth day of September, 1890,

the said plaintiff named to the said defendant points for the de-

livery of said pipe, and that from the 21st day of August, 1890, to

November 3rd, 1890, the said defendant delivered to the said

plaintiff 95.14 miles of eight-inch pipe purporting to be of such

character and quality as was called for by the said contract, and

which the said defendant was bound to deliver to the said plaintiff,

and at various times, to wit: between the sixth day of September,

and the twenty-fourth of September, 1890, the said defendant did

accordingly deliver to said plaintiff, 10.11 miles of ten-inch pipe,

which purported to be of the character which it had by the said

contract agreed to sell to said plaintiff, and at various dates, to wit:

from the 25th day of August to the 15th day of October, 1890, de-

livered to said plaintiff 1.94 miles of six-inch pipe which purported

to be the character and quality which by the said contract defend-

ant was bound to sell and deliver to the said plaintiff, and that

5 at various dates, to wit: from the 25th of August to November

3rd, 1890, the said defendant delivered to the said plaintiff

3.54 miles of four-inch pipe, which purported to be of the character

and quality which by the contract as aforesaid, the said defendant

was bound to deliver to the said plaintiff, and that at various dates,

to wit: between the 15th of August, and the 18th of August,

1890, the said defendant delivered to the said plaintiff 10.24

miles of three-inch pipe which purported to be of the character and

quality, which by the said contract said defendant was bound to

sell and deliver to said plaintiff.

All of which pipe was caused to be so shipped by the said de-

fendant to said plaintiff asin compliance with and execution on its

part of its said contract in this regard.

Declaration. 7

That all of said pipe was not delivered within the times limited De

by the contract for the delivery thereof nor was the same promptly ;

delivered upon orders of the said plaintiff to the said defendant

therefor. That said defendant at various dates, to wit: from Au-

gust 23rd, to August 28th, 1890, delivered to said plaintiff as in

compliance with its said contract, 6,000 feet of five and five-

eighths-inch casing.

And that heretofore, to wit: on the 15th day of September,

1890, the said plaintiff notified the defendant that it would require

the delivery of all pipe contracted for prior to October 1, 1890.

And that after the delivery of said pipe, including said casing as

aforesaid, the said plaintiff never at any time accepted the same,

nor agreed to receive it as in compliance with said contract, nor as

of the quality prescribed in said contract, and that the same was

not, nor was any of it, of the quality so prescribed and required in

said contract, in that, it did not conform to the specifications and

requirements in said contract mentioned and described, and that

said pipe was not made from soft iron free from blisters and other

imperfections and sufficiently strong and of a quality such as to

stand a working line pressure of one thousand pounds to the square

inch when proved and tested in lines, but on the contrary, was of

a weak, imperfect, poor and defective quality, and wholly unable

to stand a pressure not in excess of one thousand pounds to the

square inch, and was not such pipe, nor was any of it, as when sub-

jected to such a pressure so in line, would prove tight.

That accordingly, after said plaintiff had received said pipe and

after a reasonable opportunity for inspection and testing of the

same, within a reasonable time after its imperfections, insufficiency

and defective character had become known to the plaintiff, said

plaintiff heretofore and prior to bringing this suit, to wit: on the 23rd

day of May, 1891, at Chicago, in said district, rejected said pipe as

not being such pipe as by the terms of said contract the said

6 defendant was bound to deliver to the said plaintiff, and offered

to the said defendant to return the same as not being of the

quality provided for in said contract.

And that the said defendant not regarding its said promise and

undertaking did not nor wouldit, although often requested so to

do, furnish such goods and merchandise as aforesaid, as required

by said contract, but wholly neglected and refused so to do, and

therein made default, and said defendant then and there so negli-

gently and improperly conducted and behaved in and about fur-

nishing of said goods, wares and merchandise, that the same were

by reason thereof not of the quality and character provided for in

said contract, and thereby the plaintiff not only lost all benefit,

profit, and advantage which it might and could have derived and

8 Declaration.

acquired from the purchase of the said goods and merchandise but

was also put to great expense of its moneys, to wit: the sum of two

hundred thousand dollars in and about the shipping, handling and

laying of said pipe, and also lost other moneys, to wit: the sum of

six hundred thousand dollars which was paid by it to the said de-

fendant as and for the purchase price of the said goods and mer-

chandise, and also sustained great loss and damage on occasion of

its not being able to use the same at the County of Cook, aforesaid,

whereby the said plaintiff having employed large numbers of men

and secured teams, wagons, tools and machinery to lay said pipe

to use, was greatly delayed, damaged and hindered in the prose-

cuting of said work by the said failure of said defendant to comply

with its contract in promptly delivering said pipe and thereby sus-

tained further damage and loss to wit: in the sum of two hundred

thousand dollars, at Chicago, in said district, and has been and is

by reason of the premises otherwise greatly injured and damaged,

to wit: at Chicago, in said district.

By reason whereof the said defendant became liable to pay to

the said plaintiff the said several sums of money so due to the said

plaintiff by reason of the failure of the said defendant to keep and

perform its said contract and agreement with the said plaintiff, as

aforesaid, and being so liable the said defendant, in consideration

thereof, afterwards, to wit: on the twenty-second day of May, in

the year 1891, at Chicago, to wit: in said district, undertook and

then and there faithfully promised the said plaintiff well and truly

to pay unto the said plaintiff the said several sums of money so due

to said plaintiff by reasons of the premises aforesaid.

And for that, whereas, also, heretofore, to wit: on the 28th

day of June in the year 1890, the said defendant then and there, to

wit: at the City of Chicago, in said district, agreed to sell to this

plaintiff, and in consideration of the facilities and representations of

the defendant made to said plaintiff, as in said contract alleged,

7 said plaintiff agreed to purchase of the defendant wrought iron

standard line pipe as follows, that is to say:

Two hundred and sixty miles of eight-inch wrought iron stand-

ard line pipe to weigh not less than 27.48 pounds per lineal foot.

Ten to twenty miles of ten-inch wrought iron standard line pipe to

weigh not less than thirty-nine pounds per lineal foot, exclusive of

weight of collar. Ten to twenty miles of six-inch wrought iron

standard line pipe to weigh not less than 18.29 pounds per lineal

foot, exclusive of weight of collar. Ten to twenty miles of four-inch

wrought iron standard line pipe to weigh not less than 10. 39 pounds

per lineal foot exclusive of weight of collar. Ten to twenty miles

of three-inch wrought iron standard line pipe to weigh not less than

7-35 pounds per lineal foot exclusive of weight of collar. Six thou-

Declaration. 9

sand feet of five and five-eighths wrought iron standard casing, and D

that the price to be paid therefor as afuresaid, should not be more

than ninety-one cents per lineal foot for said eight-inch pipe, the

price on the other sizes of said pipe to be in proportion to that

price, to be hereafter agreed upon between the parties.

Which said price of ninety-one cents should include as a part

thereof two and one-half per cent. which in and by the agreement

of the parties was denominated a commission to be paid to said

defendant, but was in truth and in fact a part of the purchase price

of said pipe, to be paid by said plaintiff to said defendant, which

said pipe the said defendant agreed, unless prevented by strikes and

causes beyond its control, to deliver or to secure the delivery thereof

to the plaintiff, during the months of July, August and September,

at such places as should be hereafter designated by the plaintiff,

and not later than October 1, 1890, and to deliver all the eight-inch

pipe aforesaid, unless so prevented as aforesaid, so that thirty-seven

miles thereof should be delivered in July, not less than one hundred

and twenty-three miles in August and the remainder thereof unde-

livered, in September, 1890, and prior to the fifteenth day of that

month if possible.

For which said iron pipe so to be delivered as aforesaid, the

said plaintiff agreed to pay the stipylated price in cash.

And that in and by said agreement so made as aforesaid, it

was provided that said plaintiff should pay cash for said pipe, and

that all of said pipe should be in conformity with certain § specifica-

tions and certain conditions and tests as to quality, for eight-inch

pipe as in said contract was specified which said specifications were

as was Said contract in writing, and were attached thereto as Ex-

hibit ‘* B,” and that it was provided in and by said specifications

among other things, that the said eight-inch standard line pipe

8 should be delivered to the plaintiff and should be made from soft

iron free from blisters and other imperfections, and guaranteed

to stand a working line pressure of one thousand pounds to the square

inch so proved and tested in line, when tested by said plaintiff under

said working pressure which said working tests should be made

with reasonable promptness. And that said defendant would pay

said plaintiff all damages and expenses of every kind sustained by

said plaintiff for any defect or defects of said pipe up to the time

of such tests.

And that also said pipe should not be considered as accepted

by said plaintiff by reason of any payments made therefor so as to

relieve the said defendant from liability on account of its defective

character, until the whole should have been laid and tested in line

and approved.

And that heretofore, and after the date of said agreement as

ite) Declaration.

aforesaid, to wit: on the first day of July, in the year 1890, at Chi-

cago, in said district, the said defendant company furnished to the

plaintiff a statement showing the prices at which said defendant

would sell and deliver to the said plaintiff the said pipe so agreed

to be sold and delivered, as aforesaid, and that the prices so fixed

as aforesaid, were: sixty ffiles of eight-inch pipe manufactured by

the Page Tube Company at eighty-eight and six-tenths cents per

foot, sixty miles of said eight-inch pipe manufactured by the Na-

tional Tube Works Company at eighty-eight and five-tenths cents

per foot, forty miles of said eight-inch pipe manufactured by the

Pittsburgh Tube Company at eighty-eight and five-tenths cents per

foot, forty miles of said eight-inch pipe manufactured by the Read-

ing Iron Company at eighty-eight cents per foot, twenty miles of

said eight-inch pipe manufactured by Morris Tasker & Company at

eighty-eight cents per foot, twenty miles of said eight-inch pipe

manufactured by Spang, Chalfant & Company at eighty-eight cents

per foot, twenty miles of said eight-inch pipe manufactured by the

said American Tube and Iron Company at eighty-eight cents per

foot, and also ten miles of three-inch pipe at about thirty cents per

foot, ten miles of six-inch pipe at about fifty-five cents per foot,

and ten miles of ten-inch pipe at $1.30 per foot, to which the de-

fendant added the said percentage of two and one-half per cent.

hereinbefore mentioned and referred to.

And that thereafter and on various days and dates between the

date of said contract and the twenty-fourth day of September, 1890,

the said plaintiff named to the said defendant points for the delivery

of said pipe, and that from the 21st day of August, 1890, to Novem-

ber 3, 1890, the said defendant delivered to the said plaintiff 95.14

miles of eight-inch pipe purporting to be of such character and

quality as was called for by the said contract and which the said

defendant was bound to deliver to the said plaintiff, and at

9 various times, to wit: between the sixth day of September and

the twenty-fourth day of September, 1890, the said defendant

did accordingly deliver to said plaintiff 10.11 miles of ten-inch pipe

which purported to be of the character which it had by the said

contract agreed to sell to said plaintiff, and at various dates, to wit:

from the 25th of August to the 15th of October, 1890, delivered to

said plaintiff 1.94 miles of six-inch’ pipe which purported to be of

the character and quality which by the said contract the said de-

fendant was bound to sell and deliver to the said plaintiff, and that

at various dates, to wit: from the 25th of August to November 3,

1890, the said defendant delivered to the said plaintiff 3.54 miles

of four-inch pipe which purported to be of the character and qual-

ity which by the contract as aforesaid, the said defendant was

bound to deliver to the said plaintiff, and that at various dates,

Declaration. Il

to wit: between the 15th of August, 1890, the said defendant deliv- pec

ered to the said plaintiff 10.24 miles of three-inch pipe which pur- *

ported to be of the character and quality which by the said contract

said defendant was bound to sell and deliver to said plaintiff. All

of which pipe was caused to be so shipped by the said defendant to

said plaintiff as in compliance with and execution on its part of its

said contract in this regard.

That all of said pipe was not delivered within the time limited

by the contract for the delivery thereof, nor was the same promptly

delivered upon orders of the said plaintiff to the said defendant

therefor. ‘That said defendant at various dates, to wit: from

August 23 to August 28, 1890, delivered to said plaintiff, as in com-

pliance with its said contract 6,000 feet of five and five-eighths-inch

casing.

And that heretofore, to wit: on the 15th day of September,

1890, the said plaintiff notified the defendant that it would require

the delivery of all pipe contracted for prior to October I, 1890.

And that after the delivery of said pipe, including said casing, as

aforesaid, the said plaintiff never at any time accepted the same,

nor agreed to receive it as in compliance with said contract, nor as

of the quality prescribed in said contract, and that the same was

not nor was any of it of the quality so prescribed and required in

said contract, in that it did not conform to the specifications and

requirements in said contract mentioned and described, and that

said pipe was not made from soft iron, free from blisters and other

imperfections and sufficiently strong, and of a quality such as to

stand a working line pressure of one thousand pounds to the square

inch when proved and tested in lines, but, on the contrary, was of

a weak, imperfect, poor and defective quality, and wholly unable to

stand a pressure not in excess of one thousand pounds to the square

inch, and was not such pipe nor was any of it, as when subjected

to such pressure so in line would prove tight.

10 6Of all of which the said defendant heretofore, to wit: on the

22nd day of May, 1891, at Chicago, to wit: in said district had

notice. And that the said defendant not regarding its said promise

and undertaking did not nor would it, although often requested so

to do, furnish such goods and merchandise as aforesaid as required

by said contract, but wholly neglected and refused so to do, and

therein made default, and said defendant then and there so negli-

ligently and improperly conducted and behaved in and about the

furnishing of said goods, wares and merchandise that the same

were by reason thereof not of the quality and character provided for in

said contract, but were wholly unfit for the purposes of the said

contract, and were of little or no value whereby the plaintiff not

only lost all benefit, profit and advantage which it might or could

hled

12 Declaration.

have derived and acquired from the purchase of the said goods and

merchandise, but was also put to great expense of its moneys, to

wit: the sum of $200,000 in and about the shipping, handling and

laying of said pipe, and also lost other moneys, to wit: the sum of

$600,000, which was paid by it o the said defendant as and for the

purchase price of the said goods and merchandise, and also sus-

tained great loss and damage on occasion of its not being able to

use the same at the County of Cook aforesaid, whereby the said

plaintiff having employed large numbers of men, and secured teams,

wagons, tools and machinery, to lay side pipe for use, was greatly

delayed, damaged and hindered in the prosecuting of said work by

the said failure of said defendant to comply with its contract in

promptly delivering said pipe and thereby sustained further damage

and loss, to wit: in the sum of $200,000, at Chicago, in said dis-

trict, and has been and is by reason of the premises, otherwise

greatly injured and damaged, to wit: at Chicago, in said district.

By reason whereof the said defendant became liable to pay to

the said plaintiff the said several sums of money so due to the said

plaintiff by reason of the failure of the said defendant to keep and

perform its said contract and agreement with the said plaintiff as

aforesaid, and being so liable the said defendant, in consideration

thereof, afterwards, to wit: on the twenty-second day of May, in

the year 1890, at Chicago, to wit: in said district, undertook and

then and there faithfully promised the said plaintiff well and truly

to pay unto the said plaintiff the said several sums of moneyso due

to said plaintiff by reason of the premises as aforesaid.

And for that, whereas, also, heretofore, to wit: on the 28th

day of June, 1890, the said defendant then and there, to wit: at

the City of Chicago, in said district, agreed to buy as the agent of

this plaintiff, and to deliver to said plaintiff, and in consideration of

the facilities and representations of the defendant made to said

plaintiff, as in said contract alleged, which contract with the

11 papers referring to the subject-matter thereof and attached

hereto, are hereby made a part hereof; said plaintiff agreed to

receive of the defendant and pay defendant for wrought iron stand-

ard line pipe, as follows, that is to say:

Two hundred and sixty miles of eight-inch wrought iron stand-

ard line pipe to weigh not less than 27.48 pounds per lineal foot.

Ten to twenty miles of ten-inch wrought iron standard line pipe to

weigh not less than thirty-nine pounds per lineal foot exclusive of

weight of collar. Ten to twenty miles of six-inch wrought iron

standard line pipe to weigh not less than 18.29 pounds per lineal

foot exclusive of weight of collar. Ten to twenty miles of four-

inch wrought iron standard line pipe to weigh not less than 10.39

pounds per lineal foot exclusive of weight of collar. Ten to twenty

Declaration. 13

miles of three-inch wrought iron standard line pipe to weigh not De

less than 7.35 pounds per lineal foot exclusive of weight of collar.

Six thousand feet of five and five-eighth-inch wrought iron standard

casing, and that the price to be paid therefor as aforesaid, should

not be more than ninety-one cents per lineal foot for said eight-

inch pipe, the price of the other sizes of said pipe to be in propor-

tion to that price, to be thereafter agreed upon between the parties.

Which said price of ninety-one cents should include as a part

thereof two and one-half per cent. as a commission or compensa-

tion to be paid to said defendant, which said pipe the said defend-

ant agreed unless prevented by strikes and causes beyond its con-

trol, to deliver or to secure the delivery thereof to the plaintiff dur-

ing the months of July, August and September, at such places as

should be thereafter designated by the plaintiff, and not later than

October 1, 1890, and to deliver all the eight-inch pipe aforesaid,

unless so prevented as aforesaid, so that thirty-seven miles thereof

should be delivered in July, not less than one hundred and twenty-

three miles in August, and the remainder thereof undelivered, in

September, 1890, and prior to the fifteenth day of that month if

possible.

For which the said iron pipe so to be delivered as afore-

said, the said plaintiff agreed to pay the stipulated price in cash.

And that in and by said agreement so made as aforesaid, it was

provided that all of said pipe should be in conformity with certain

specifications, and certain considerations and tests as to qualify for

eight-inch pipe as in said contract was specified, which said specifi-

cations were as was said contract in writing and were attached

thereto at Exhibit ‘'B,”” and that it was provided in and by said

specifications among other things, that the said eight-inch standard

line pipe should be delivered to the plaintiff, and should be made

from soft iron, free from blisters and other imperfections, and guar-

anteed to stand a working line pressure of one thousand pounds

to the square inch, so proved and tested in lines when tested

12 by said plaintiff under said working pressure, which said work-

ing tests should be made with reasonable promptness.

And that also said pipe should not be considered as accepted

by said plaintiff by reason of any payments made therefor so as

to relieve the said defendant from liability, on account of its de-

fective character, until the whole should have been laid and tested

in line and approved.

And that heretofore, and after the date of said agreement as

aforesaid, to wit: on the first day of July, in the year 1890, at

Chicago, in said district, the said defendant company furnished to

the plaintiff a statement showing the prices at which said defendant

would deliver to the said plaintiff, the said pipe so agreed to be

fled

14 Declaration.

bought and delivered as aforesaid, and that the prices so fixed as

aforesaid, were, sixty miles of eight-inch pipe manufactured by the

Page Tube Company, at eighty-eight and six-tenths cents per foot,

sixty miles of said eight-inch pipe manufactured by the National

Tube Works Company at eighty-eight and five-tenths cents per

foot, forty miles of eight-inch pipe manufactured by the Pittsburgh

Tube Company at eighty-five and five-tenths cents per foot, forty

miles of said eight-inch pipe manufactured by the Reading Iron

Company, at eighty-eight cents per foot, twenty miles of said eight-

inch pipe manufactured by Morris Tasker & Company at eighty-

eight cents per foot, twenty miles of said eight-inch pipe manu-

factured by the said American Tube and Iron Company at eighty-

eight cents per foot, and also ten miles of three-inch pipe at about

twenty-two cents per foot, ten miles of six-inch pipe at about fifty-

five cents per foot, andten miles of ten-inch pipe at one dollar and

thirty cents per foot, to which the defendant added the said percent-

age of two and one-half per cent. hereinbefore mentioned and

referred to.

And that thereafter, and on various days and dates between

the date of said contract and the twenty-fourth day of September,

1890, the said plaintiff named to the said defendant points for the

delivery of said pipe, and that from the 21st day of August, 1890,

to November 3, 1890, the said defendant delivered to the said

plaintiff, 95.14 miles of eight-inch pipe, purporting to be of such

character and quality as was called for by the said contract, and

which the said defendant was bound to deliver to the said piaintiff,

and at various times, to wit: between the 6th day of September

and 24th day of September, 1890, the said defendant did accord-

ingly deliver to said plaintiff 10.11 miles of ten-inch pipe, which

purported to beof the character which it had by said contract

agreed to deliver to said plaintiff, and at various dates, to wit: from

the 25th of August to November 3, 1890, the said defendant deliv-

ered to the said plaintiff 3.54 miles of four-inch pipe, which pur-

ported to be of the character and quality which by the contract

13 asaforesaid, the said defendant was bound to deliver to the

said plaintiff, and that at various dates, to wit: between the

15th of August and the 18th of August, 1890, the said defendant

delivered to the said plaintiff 10.24 miles of three-inch pipe, which

purported to be of the character and quality which by the said con-

tract said defendant was bound to deliver to said plaintiff.

All of which pipe was caused to be shipped by the said de-

fendant to said plaintiff as in compliance with and execution on its

part of its said contract in this regard.

That all of said pipe was not delivered within the times lim-

ited by the contract for the delivery thereof, nor was the same

Declaration. 15

promptly delivered upon orders of the said plaintiff to the defend- 0

ant therefor. That said defendant at various dates, to wit: from

August 23 to August 28, 1890, delivered to said plaintiff as in com-

pliance with its said contract, 6,000 feet of five and five-eighth-

inch casing.

And that heretofore, to wit: on the 15th day of September,

1890, the said plaintiff notified the defendant that it would require

the delivery of all pipe contracted for prior to October 1, 18go0.

And that after the delivery of said pipe, including said casing as

aforesaid, the said plaintiff never at any time accepted the same,

nor agreed to receive it as in compliance with said contract, nor as

of the quality prescribed in said contract, and that the same was

not, nor was any of it of the quality so prescribed and required in

said contract, in that it did not conform to the specifications and

requirements in said contract mentioned and described, and that

said pipe was not made from soft iron, free from blisters and other

imperfections, and sufficiently strong and of a quality such as to

stand a working line pressure of one thousand pounds to the square

inch when proved and tested in lines, but, on the contrary, was of

a weak, imperfect, poor and defective quality, and wholly unable

to stand a pressure not in excess of one thousand pounds to the

square inch, and was not such pipe, nor was any of it as when sub-

jected to such pressure would prove tight.

That accordingly, after said plaintiff had received said pipe,

and after a reasonable opportunity for inspection and testing of the

same, and within a reasonable time after its imperfections, insuffi-

ciency and defective character had become known to the plaintiff,

said plaintiff, heretofore, and prior to beginning this suit, to wit: on

the 23d day of May, 1891, at Chicago, in said district, rejected

said pipe as not being such pipe as by the terms of said contract

the said defendant was bound to deliver to the said plaintiff, and

offered to the said defendant to return the same as not being of the

quality provided for in said contract.

And that the said defendant, not regarding its said promise and

14 undertaking, did not nor would it, although often requested so to

do, furnish such goods and merchandise as aforesaid, as required

by said contract, but whelly neglected and refused so to do, and

therein made default, and said defendant then and there so negligent-

ly and improperly conducted and behaved in and about the furnishing

of said goods, wares and merchandise, that the same were by reason

thereof not of the quality and character provided for in said contract,

and thereby the plaintiff not only lost all benefit, profit and advantage

which it might and could have derived and acquired from the purchase

of the said goods and merchandise, but was also put to great expense

of its monies, to wit: the sum of two hundred thousand dollars in and

16 Declaration.

about the shipping, handling and laying of said pipe, and also lost

other monies, to wit: the sum of six hundred thousand dollars which

was paid by it to the said defendant as and for the purchase price

of the said goods and merchandise, and also sustained great loss

and damage on occasion of its not being able to use the same at

the county of Cook aforesaid, whereby the said plaintiff having em-

ployed large numbers of men and secured teams, wagons, tools and

machinery to lay said pipe for use was greatly delayed, damaged,

and hindered in the prosecuting of said work by the failure of said

defendant to comply with its contract in promptly delivering said

pipe, and thereby sustained further damage and loss, to wit: in the

sum of $200,000 at Chicago, in said district, and has been and is

by reason of the premises otherwise greatly injured and damaged,

to wit: at Chicago, in said district.

By reason whereof the said defendant became liable to pay tothe

said plaintiff the said several sums of money so due to the said

plaintiff by reason of the failure of the said defendant to keep and

perform its said contract and agreement with the said plaintiff, as

aforesaid, and being so liable the said defendant in consideration

thereof, afterwards, to wit: on the twenty-second day of May, in

the year 189i, at Chicago, to wit: in said district, undertook and

then and there faithfully promised the said plaintiff the said several

sums of money so due to said plaintiff by reason of the premises as

aforesaid.

And for that whereas, also, heretofore, to wit: on the 28th

day of June, in the year 1890, the said defendant then and there

to wit: at the city of Chicago, in said district, agreed to buy asthe

agent of this plaintiff, and to deliver to said plaintiff, and in con-

sideration of the facilities and representations of the defendant made

to said plaintiff as in said contract alleged, which contract with the

papers referring to the subject-matter thereof, and attached hereto

are hereby made a part hereof, said plaintiff agreed to receive

15 of the defendant and pay defendant for wrought iron standard

line pipe, as follows, that is to say: