# Transcript of Record — Columbus Constr. Co. v. Crane Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0329%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1899 - **Citation:** 174 U.S. 600 ## 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...... II 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 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 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 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 IX 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 . 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 3% 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 428 429 431 432 432 -- 434 - 435 ae 486 . 437 . 438 438 440 440 441 442 . 443 . 444 - 444 445 446 446 447 .. 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 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 1. 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 I. 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: 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. Declaration. 17 Six thousand feet of five 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 proportion 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 compensation to be paid 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 thereafter des- ignated by the plaintiff, and not later than October 1, 1890, and to deliver all the eight-inch pipe aforesaid, unless so prevented as afore- said, 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 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 all of said pipe should be in conformity with certain specifications 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 at- tached thereto as 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 im- perfections, and guaranteed 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 pres- sure, which said working tests should be made with reasonable promptness. 16 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 Chi- cago, 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 bought and delivered as aforesaid, and that the prices so fixed as aforesaid were sixty miles of eight-inch pipe manufactured by the hled 18 Declaration. 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 foot, forty miles of said eight-inch pipe manufactured by the Pitts- burgh Tube Company at eighty-eight and five-tenths 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 manufac- tured 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 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 variousdays 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 of August, 18g0, 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 plaintiff and at various times, to wit: between the sixth day of September and the twenty-fourth day of September, 1890, the said defendant did ac- cordingly 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 deliver 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 defendant was bound to deliver to the said plaintiff, and at various dates, 17 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 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 deliver to said plaintiff. All of which was caused to be so shipped by the said defendant Declaration. 19 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 limited by the contract for the delivery thereof, nor was the same prompt- ly delivered upon orders of the said plaintiff to the said defendant therefor. That said defendant at various dates, to wit: from Au- gust 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 1, 1890. And that after the delivery of said pipe, including said casing, as afore- said, 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 te the specifications and re- quirements in said contract mentioned and described, and that said pipe was not made from soft iron free from blisters and other im- perfections 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 line. But on the contrary was of a weak, imperfect, poor and de- fective quality and wholly unable to stand pressure not in excess of one thousand pounds to the square inch, and was not such pipe nor was any of itas when subjected to such pressure so in line would prove tight. 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 aforesard as required by said contract, but wholly neglected and refused so to do and therein made default, and said defendant then and there so negligently and improp- erly 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 18 wholly unfit for the purpose of the said contract and were of little or no value, 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 moneys, to wit: the sum of two hundred thousand dollars in and about the shipping, hand- ling 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 defendant as and for the purchase price of the said goods and 20 Declaration. merchandise, and also sustained great loss and damage on occasion of its not being able to use the same at the county of Cock afore- said, whereby the said plaintiff having employed 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 ptosecuting 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 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 reason of the premises as aforesaid. And for that whereas, also, the said defendant heretofore, to wit: on the twenty-second day of May, in the year of our Lord one thousand eight hundred and ninety-one, at Chicago, to wit: at the district aforesaid, became and was indebted to the said plaintiff in the sum of one million dollars of lawful money of the United States of America, for divers goods, wares and merchandise, by the said plaintiff before that time sold and delivered to the said defend- ant, and at the special instance and request of the said defendant, and being so indebted to the said plaintiff the said defendant in consideration thereof afterwards, to wit: on the same day and year and at the place aforesaid, undertook and then and there faithfully promised the said plaintiff well and truly to pay unto the said plaintiff the sum of money last mentioned when the said defendant should be thereunto afterwards requested. 19 And whereas, also, the said defendant afterwards, to wit: on the same day and year and at the place aforesaid, in consider- ation that the said plaintiff had before that time at the like special instance and request of the said defendant, sold and delivered to the said defendant divers other goods, wares and merchandise of the said plaintiff, the said defendant then and there undertook and faithfully promised the s.id plaintiff that the said defendant would well and truly pay to the said plaintiff so much money as the last aforesaid goods, wares and merchandise at the time of the sale and delivery thereof were reasonably worth when the said defend- Declaration. : 21 ant should be thereunto afterwards requested, and the said plaintiff De avers that the said goods, wares and merchandise last mentioned , at the time of the sale and delivery thereof, were reasonably worth the further sum of one million dollars of like lawful money as afore- said, to wit: at the place aforesaid, whereof the said defendant afterwards on the same day and year and at the place aforesaid had notice. And whereas, aiso, the said defendant, afterwards, to wit: on the same day and year last aforesaid, was indebted to the said plaintiff in the further sum of one million dollars of like lawful money as aforesaid, for money before that time lent and advanced by the said plaintiff to the said defendant and at the like request of the said defendant. And in the like sum for other money by the said plaintiff be- fore that time paid, laid out and expended for the said defendant and at the like request of the said defendant. And in the like sum for other money by the said defendant before that time had and received to and for the use of the said plaintiff. And in like sum for other money before that time and then due and owing the said plaintiff for interest upon and for the forbearance of divers other sums of money before that time and then due and owing from said defendant to said plaintiff. And in the like sum for the price and value of work then done and material for the same provided by the said plaintiff for the said defendant, and at the like special request of the said defendant. And being so indebted the said defendant in consideration thereof, afterwards, to wit: on the same day and year and at the place aforesaid, undertook and then and there faith- fully promised the said plaintiff well and truly to pay unto the said plaintiff the several sums of money in this count mentioned when the said defendant should be thereunto afterwards requested. And whereas, also, the said defendant afterwards, to wit: on the same day and year and at the place aforesaid, accounted to- gether with the said plaintiff of and concerning divers other sums of money before that time due and owing from the said defendant to the said plaintiff, and then and there being in arrear and unpaid, and upon such accounting the said defendant then and there 20 was found to be in arrear and indebted to the said plaintiff in the further sum of one million dollars of like lawful money as aforesaid. And being so found in arrear and indebted to the said plaintiff, the said defendant in consideration thereof afterwards, to wit: on the same day and year, and at the place aforesaid, un- dertook and then and there faithfully promised the said _ plaintiff well and truly to pay unto the said plaintiff the sum of money last mentioned, when the said defendant should be thereunto after- wards requested. Copy of Account and Agreement. Nevertheless, the said defendant, although often requested, etc., hath not yet paid the said several sums of money above men- tioned, or any or either of them, or any part thereof to the said plaintiff, but to pay the same or any part thereof to the said plain- tiff the said defendant hath hitherto altogether refused, and still doth refuse to the damage of the said plaintiff of $1,000,000, and therefore the said plaintiff brings suit, etc. GreEGorRY, BootH & HARLAN, Plaintiff's Atterneys. Copy OF INSTRUMENT AND ACCOUNT SUED ON. Crane Co.: Jo COLUMBUS CONSTRUCTION Co. Dr. To goods, wares and inerchandise sold and delivered.. .$1,000,000 To n.oney lent and advanced. is Sct esse enensae $,0RO000 To money paid, laid out and expended. . ere 1,000,000 To money had and received to and for the use of ‘said plaintiff. . : si ede 6 4,¢0 ORO, O00 To money due for interest and forebearance. . iticenas S,RORO To labor, services and material. (‘Arc tePaerarden se LORD To balance due on account stated .. TES OE e f Copy oF AGREEMENT SUED ON. This agreement made this twenty-eighth day of June, A. D. 1890, between the Columbus Construction Company, a corporation existing under and by virtue of the laws of the State of New Jersey, party of the first part; and the Crane Company, a corporation ex- isting under and by virtue of the laws of the State of Illinois, party of the second part. WitNEssETH, That for and in consideration of the facilities and representations of the party of the second part, more fully shown by ‘‘ Exhibit A,” hereto attached, and made a part hereof, to effect for the party of the first part upon desirable terms 21 the purchase of the standard wrought iron pipe line hereinafter specified, and the sum of one dollar in hand paid by each of the parties hereto the one to the other, the receipt whereof is here- by mutually acknowledged, it is agreed between the parties hereto as follows, to wit: The party of the second part will purchase in its own name and upon its own credit as the agent irrevocable of the party of the first part, and secure the delivery to the party of the first part dur- ing the months of July, August and September as hereinafter speci- Exhibits to Declaration. 23 fied at such places as may be designated hereafter by the party of the first part, at the earliest practical dates, but not later that Oc- tober 1, 1890, barring strikes and causes beyond control for the lowest obtainable price (which price shall include freights to the points of delivery, same not to exceed the current rate of freight from point of shipment to Chicago) and the party of the first part will take all wrought iron standard line pipe hereinafter specified in conformity with the specifications and subject the conditions and tests more fully set forth, and specified in the contract and _ speci- fications for standard 8-inch line pipe hereunto attached (subject, however, to change as to size and weight as hereinafter stated) marked ‘* Exhibit B,”’ hereunto attached and made a part hereof, at a price including commissions to be paid party of the second part of two and one-half (2 1-2) per cent. not exceeding ninety-one (91) cents per lineal foot for eight (8) inch standard line pipe, and price on the following sizes to be in proportion to price given on eight-inch as above and as hereinafter specified. cents per lineal foot for ten-inch standard line pipe. cents per lineal foot for six-inch standard line pipe. cents per lineal foot for four-inch standard line pipe. cents per lineal foot for three-inch standard line pipe. cents per lineal foot for 5 5-8-inch standard casing. 260 miles of eight-inch wrought iron standard line pipe to weigh not less than 27.48 pounds per lineal foot. 10 to 20 miles of 10-inch wrought iron standard line pipe, to weigh not less than 39 pounds per lineal foot exclusive of weight of collar. 10 to 20 miles of 6-inch wrought iron standard line pipe, to weigh not less than 18.29 pounds per lineal foot exclusive of weight of collar. 10 to 20 miles of 4-inch wrought iron standard line pipe, to weigh not less than 10.39 pounds per lineal foot exclusive of weight of collar. 10 to 20 miles of 3-inch wrought iron standard line pipe, to weigh not less than 7.35 pounds per lineal foot exclusive of weight of collar. 22 6,000 feet of 5 5-8-wrought iron standard casing. It being the intent and purpose hereof that the party of the first part shall have the right during the running of this agreement to take so much of the ten, six, four and three-inch pipe over and above the ten miles hereinafter specified (but in amount not exceed- ing twenty miles of each size specified, eight-inch excepted), as it may hereafter designate. The party of the second part will, barring strikes and causes beyond their control, deliver all the eight-inch pipe before men- Copy sued 24 Exhibits to Declaration. tioned, in amount not less than thirty-seven miles, in July, not less than 123 miles in August, and all the remaining undelivered in Sep- tember, 1890, prior to the 15th of September, if possible. The party of the first part agrees to pay to the party of the second part upon the delivery of each and every invoice of pipe at such delivery points as the party of the first part shall designate, spot cash therefor, including commission of two and one half (23) per cent. over and above the amount of each original invoice ren- dered party of the second part by the manufacturer, but in no case agreeing to pay any sum or sums in excess of (including pipe freight and commission or other charges) the prices hereinbefore fixed for each size of pipe. In witness whereof the parties hereto have caused this instru- ment to be executed in duplicate by their respective presidents, and attested by their respective secretaries, under their respective cor- porate seals, this 30th day of June, 1890. COLUMBUS CONSTRUCTION COMPANY, By C. E. HrEQuempBourc, President, Attest: C. K. Wooster, Secretary of Columbus Construction Company. CRANE COMPANY, R. T. Crane, President. Attest: Gro. L. FORMAN, Secretary of the Crane Company. [SEAL. | NEw York, June, 1890. The within contract is hereby approved by the subscribers, the holders of a majority of all the stock of the Columbus Construc- tion Company outstanding at this date, pursuant to section 1, arti- cle 2, of the by-laws of the Columbus Construction Company. E. BENEDICT. CHICAGO, June 20, 1890. C. E. Hequembourg, Esq. DEAR Sir: As members of the Pipe Association, with a rep- resentative on the Board of Managers, we feel confidant of our ability, in fact know that we can, purchase the pipe in question at least five per cent. less than any outsider. Especially is this true in the face of the legislation enacted by the Board of Managers at a meeting held in Pittsburg on Wednes- day, the 18th inst., at which meeting it was agreed that cash for- feits of large amounts be put up, the same to be forfeited in the event of the agreed price being cut. It will be necessary for the Board uf Managers to take special Exhibits to Declaration. tN vr legislation in effect, to throw the market open in the interest of our Company to enable us tosecure the material wanted at a price sat- isfactory to you, and acting merely as your agent the price made us would naturally be yours. Our position in the Association is such that we feel confidant of bringing this about. Should you have sufficient confidence in our Company to ap- point us your agents in this matter, the actual placing of the order in itself, quite a task tc our minds, would only be the beginning of a large line of work that we would be necessarily called upon to do for you in the handling of a dozen mills more or less, that would have to participate in the completion of such an order. In conse- quence of which, we think, in tendering our services to you as we do, that 2} per cent. brokerage would only be a reasonable charge. Should you decide to accept our offer your wishes will be our instructions. Very respectfully yours, (Signed ) CRANE COMPANY, Gro. L. ForMAN, Secretary. 24 ‘+ EXHIBIT B.”’ This agreement made and entered into the.............. of is = and between.......... : . party of the first part and the.... ‘nee kes Se _.party of the ‘second part, WITNESSETH, That the said party of the second, for and in consideration of one dollar to it in hand well and truly paid by the party of the sccond part at and before the sealing and deliv- ery hereof, the receipt of which is hereby acknowledged, and of the payments hereinafter mentioned to be made by the said party of the second part, has covenanted and agreed and by these presents does covenant and agree, First. To furnish and deliver to the said party of the sec- ond part....miles of eight-inch standard nominal weight line pipe, 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 when proved and tested in lines, as hereinafter provided. Second. This pipe shall be eight-inch standard line pipe, and no single joint of the said pipe shall weigh less than 27.48 pounds to the lineal foot. Third. That no more than five (5) spliced joints shall be in- cluded in any one car load, and that each sliced joint shall weigh Exh 26 Exhibits to Declaration. the weight of the collar in addition to the weight herein contracted for. Fourth. That each joint of pipe furnished under this con- tract shall have eight threads to the inch, and at least two inches of thread on each end, and that full, uniform taper shall be given to the threads both on the pipe and in the collar. Fifth. That it will not commence later than. and will on said day and on each working day thereafter, deliver to the Railway Company for vt ae to the party of the sec- ond part at railway stations in. . whey ake at least an IE 6 bis ceés o> a -miles of pipe, “until the whole amount of pipe herein contracted for is delivered. which shall not be later than.................., barring strikes and causes beyond our control. Sixth. That it will pay all freight and other charges for transportation of said pipe from its mills to destination, as above. Seventh. That it will pay to the party of the second part all 25 damages and expenses of every kind which second party shall sustain by reason of any defect or defects in the pipe delivered, up to and including the time when said pipe is tested by second party under working pressure not in excess of one thousand (1,000) pounds to the square inch, and proved tight in the line, which work- ing test shall be made with reasonable promptness, and, Eighth. That it will pay the party of the second part as liq- uidation damages the sum of ed (59) dollars per day, for each and every day after said. os ...., and until the amount of pipe agreed to be furnished, as ; above provided, has been furn- ished, and second party may deduct the amount of such damages from any money in its hands due first party for pipe furnished under this contract. In consideration of the premises, the said party of the second part covenants and agrees to pay to the party of the first part the sum of............per foot for each and every foot of pipe re- ceived by it under this contract, said payments to be made on each car load of pipe within fifteen days after the receipt of the same, unless counterbalanced by damages due to second party. It is expressly understood and agreed by and between the par- ties hereto, that the representative of second party, at first party's mill is there only for the purpose of seeing that the said pipe comes up to the guaranteed weight, and that the treads and sockets are not manifestly defective, and said pipe shall not be con- strued to be accepted by second party by reason of any payments made therefor, so as to relieve first party from liability on account of its defective character until the same has been laid and tested in the line and proved. IN WITNESS WHEREOF, the parties to this agreement have hereunto set their hands and seals the day and year above written. Exhibits to Declaration. BILL OF PARTICULARS. CRANE COMPANY In account with CoLuMBUS CONSTRUCTION COMPANY. To paid for pipe. Ss GU Bae eh we he ee is wes ow anes coy 20,000 20,000 20,000 20,000 40,000 20,000 20,000 20,000 20,000 20,000 20,000 20,000 20,000 20,000 20,000 20,000 20,000 ic) 1 RN ae sealant Sa Sree ae ga a WO. Vins x ctw 26 eek Gare ome | ae eg RIGS aye gee ner BS Pe ae ae SO EBON as ie ee ate” Tee Per a i ha Race no asd Suaco ela. eae ei RR Gt sks SS TRIO aes vorhvs PD Te “se Shs ee 5 ae Freight paid for Crane ‘Company. . Moneys paid out for laying - 19-35 miles... ‘ Moneys paid. out for placing pipe on n right of way 41 miles. Loss and damage sustained by f failure to deliver pipes at times agreed. (Endorsed. ) Filed this 26th day of June, 189r. Wo. H. 53173-79 200,000.00 $7 16,066.74 BRADLEY, Clerk. Bi 28 Demurrer—Hearing. 27 Afterwards to wit: on the seventh day of July, 1891, came the defendant by its attorneys and filed in the clerk's office of said court its general demurrer, which said General Demurrer is in the words and figures following to wit: GENERAL DEMURRER. UNITED STATES OF AMERICA, NORTHERN DistTRICT OF ILLINOIS. IN THE Circuit Court OF THE UNITED STATES, FOR THE Nor- THERN DIstfRICT OF ILLINOIS. Columbus Construction Company vs Crane Company. ‘ And the defendant, by Williams, Holt & Wheeler, comes and defends, etc., when, etc., and says that the said declaration and each and every separate count thereof and the matters therein con- tained in manner and form asthe same are above set forth are not sufficient in law for the plaintiff to maintain its aforesaid action, and that it, the defendant, is not bound by law to answer the same, and this it is ready to vertify, wherefore, for want of a sufficient declara- tion in this behalf the defendant prays judgment and that the plain- tiff may be debarred from maintaining its aforesaid action, etc. WILLIAMS Ho_Lt & WHEELER, Defendant's Attys. (Endorsed): Filed July 7, 1891. WM. H. Brapvey, Cleré. Afterwards, to wit: on the second day of November, in the Oc- tober adjourned term of said court, 1891, in the record of proceed- ings thereof, in said entitled cause, before the Hon. Henry W. Blodgett, District Judge, appears the following entry to wit: 28 The Columbus Construction Company ] 22,015. VS. Crane Company. ( Now come the parties, by their attorneys, and on motion of the plaintiff, by its attorney, leave is given it to amend the second and fourth counts of the declaration herein, which is now done, and now comes on to be heard the demurrer of the defendant to said declaration and each count thereof, and after hearing the arguments of the counsel the court takes the same under advisement. Order—Judgment. 29 Afterwards, to wit: on the ninth day of November, in the ad- Order journed October term of said court, 1891, in the record of proceed- cept 4th d ings thereof before the Hon. Henry W. Blodgett, District Judge, 9, 1 appears the following entry, to wit: The Crane Construction Company vs. Crane Company. Now come the parties, by their attorneys, and the court having considered and being now fully advised upon the demurrer of the defendant to the declaration herein, overrules said demurrer to all the counts of said declaration, except the third and fourth special counts, and sustains said demurrer to said third and fourth special counts, And afterwards, to wit: on the 23d day of November, of the orde adjourned October term, A. D. 1891, of said court, in the record pre of the proceedings thereof in said above entitled cause, before the 3! Honorable Henry W. Blodgett, District Judge, appears the follow- ing entry, to wit: ENTRY. Columbus Construction Company 22,015. aS. » Assumpsit. The Columbus Company. ( Now come the parties, by their respective attorneys, and it is ordered that the order entered herein, on the ninth instant, overruling the defendant's demurrer as to all the counts of the declaration filed herein, except the third and fourth special counts, and sustaining said demurrer to said third and fourth special counts be set aside and vacated. And on motion of the plaintiff, by its attorney, it 29 isordered that the common counts and the first and second spec- ial counts of said declaration beand they are hereby dismissed, and on motion of the defendant, by its attorney, leave is given it to file an amended demurrer to said third and fourth special counts, which is now filed, and the court, having considered and being now fully advised upon said amended demurrer, sustains the same, and orders that this cause be dismissed at the cost of the plaintiff. It is thereupon considered and adjudged by the court that said jydgn defendant do have and recover of said plaintiff its costs in this be- N° half to be taxed, and that execution issue therefor. On the same day, to wit: on the twenty-third day of November, 1891, came the defendant in said entitled cause, by its attorneys, and filed in the clerk’s office of said court its Demurrer to Amended Declaration, which said demurrer is in the words and figures following, to wit: ul- to 30 Demurrer—Order. 30 DEMURRER TO AMENDED DECLARATION. IN THE CiRcUIT CoURT OF THE UNITED STATES, FOR THE NORTHERN DIsTRICT OF ILLINOIS. Columbus Construction Company VS. Crane Company. ( And the defendant, by Williams, Holt & Wheeler, its attor- neys, comes and defends the wrong and injury, when, etc., and says that the said declaration and each count thereof, and the mat- ters therein contained in manner and form as the same are above set forth, are not sufficient in law for the plaintiff to maintain its aforesaid action, and that it, the defendant, is not by law bound to answer the same, and this it is ready to verify. Wherefore for want of sufficient declaration in this behalf, the defendant prays judgment that the plaintiff may be debarred from maintaining its aforesaid action, etc. And for causes of demurrer, the defendant shows that the plaintiff hath not in and by its said declaration al- leged or set forth wherein and in what respects the defendant was guilty of the negligence in said declaration imputed to it. And that said declaration and each count thereof is in other respects defective, informal and insufficient in law. WictiaMs, Hott & WHEELER, Defts’. Attys. (Endorsed): Filed Nov. 23, 1891. Wm. H. Brapb.ey, Clerk. And afterwards, to wit: on the 26th day of October of the ad- journed October term, A. D. 1892, of said court in the record of the proceedings thereof in said above entitled cause, before the Honorable Walter Q. Gresham, Circuit Judge, appears the follow- ing entry, to wit: 31 ENTRY. Columbus Construction SomIeey ¢ US. 22,015. The Crane Company. ( Now comes the plaintiff by its attorney, moves the court for leave to file the mandate of the United States Circuit Court of Ap- peals for the Seventh Circuit, which is allowed, and this cause is or- Stipulation—Order. iy 31 ’ dered to be redocketed. And the court in accordance with said mandate overrules -the defendant’s demurrer to the declaration herein and the defendant is ruled to plead thereto within twenty days from the date hereof. Afterwards, to wit: on the sixth day of April, 1893, there was filed in the clerk’s office of said court the following stipulation: STIPULATION, UNITED STATES CIRCUIT COURT, IN AND FOR THE NORTHERN Dis- TRICT OF ILLINOIs. Columbus Construction Company ) VS. r 21,015, Assumpsit. Crane Company. ( It is hereby stipulated and agreed that the appearance of Messrs. Gregory, Booth and Harlan, as attorneys for the plaintiff herein may be withdrawn, and that the appearance of Messrs. Campbell and Custer may be entered as attorneys for said plaintiff. GREGORY, Bootu & HARLAN, Attorneys for Plaintiff. WivuiaMs, Hott & WHEELER, Attorneys for Defendant. We hereby enter our appearance for the plaintiff in the above cause. CAMPBELL & CUSTER, Altys. for Plaintiff, (Endorsed.) Filed April 6, 1893. S. W. Burnuam, Cleré. 32 Afterwards, to wit: on the seventh day of April, in the ad- journed March term of said court, 1893, in the record of pro- ceedings thereof in said entitled cause before the Hon. Peter S. Grosscup, District Judge, appears the following entry, to wit: Columbus Construction Company ) VS. . Crane Company. \ Upon the stipulation herein filed, it is ordered that the appear- ance of Gregory, Booth and Harlan for the plaintiff herein be withdrawn, and that the appearance of Campbell & Custer, at- torneys, be substituted therefor. Sti 32 Plea. Afterwards, to wit: on the sixteenth day of June, 1893, came the defendant in said entitled cause by its attorneys and filed in the clerk’s office of said court its plea with notice of set-off, which said plea, etc., is in the words and figures following, to wit: PLEA. IN THE CircUIT COURT OF THE UNITED STATES, FOR THE NORTH- ERN DISTRICT OF ILLINOIs. Columbus Construction Company } vs. . Crane Company. \ And the defendant, by Williams, Holt & Wheeier, its at- torneys, comes and defends the wrong and injury, when, etc., and says that it did not undertake or promise in manner and form as the plaintiff hath thereof in its said declaration above complained against the defendant. And of this the defendant puts itself upon the country. The plaintiff will take notice that on the trial of this cause, the defendant under its foregoing plea of the general issue will prove and rely upon the following matters in defense of said suit and by way of set-off and counter-claim, to wit: The defendant says that in accordance with the agreement set forth as an exhibit to said declaration, the defendant did purchase, as the agent of the plaintiff, and contract for the delivery to the plaintiff of all the pipe specified in said agreement at prices not exceeding the prices respectively designated in the said agreement for the respective sizes. That at the time of entering into 33 said agreement it was well known both to the plaintiff and to the defendant and was contemplated by the plaintiff and by the defendant that the said pipe should not be manufactured by the defendant, but should be purchased and procured by it from various pipe manufacturers, and that the form of contract attached as Exhibit ‘‘ B”’ to said agreement, and by reference made a part thereof, was intended both by the plaintiff and by the defendant to be a prescribed form employed by the defendant as the agent of the plaintiff in contracting with such manufacturers. That the de- fendant contracted in its own name, but as the agent for and on behalf of the plaintiff and in the form so prescribed by Exhibit ‘« B,” with the following named manufacturers of pipe for the manufacture and delivery under and in pursuance of said agree- ment of the following quantities of eight-inch line pipe, at prices Plea. 33 below respectively designated, to wit: Page Tube Company, sixty miles of pipe at eighty-eight and six-tenths cents per foot; National Tube Works Company, sixty miles of pipe at eighty-eight and five- tenths cents per foot; Pittsburg Tube Company, forty miles of pipe at eighty-eight and five-tenths cents per foot; Reading Iron Com- pany, forty miles of pipe at eighty-eight cents per foot; Morris, Tasker & Company, twenty miles of pipe at eighty-eight cents per foot; Sprang, Chalfant & Company, twenty miles of pipe at eighty- eight cents per foot; American Tube & Iron Company, twenty miles of pipe 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 ten cents per foot, to which sums the de- fendant was entitled to add its commission of two and one-half per cent. That all of said manufacturers with whom the defendant con- tracted were competent, skillful and responsible manufacturers of pipe, fully able to carry out their said agreements, and to respond in damages for any failure to carry out the same. That the mak- ing of each and all of said contracts and agreements by the de- fendant was duly and promptly reported and made known to the plaintiff during the month of July, 1890, and the plaintiff approved of the same and assented to said contracts, and from time to time thereafter gave directions as to the methods of manufacturing said pipe, and as to the time and manner of shipment thereof. That during the months of July, August and September, 1890, large quantities of pipe manufactured by the respective contracting parties above mentioned were by direction of the plaintiff shipped and de- livered to the plaintiff at various points in the states of Illinois and Indiana. That the manufacture and shipment of all the pipe men- tioned in said contracts was not completed during said months of July, August and September, by reason of strikes and other causes beyond the control of the defendant, the plaintiff being informed of and consenting to such delays. That during or about the 34 month of October, 1890, the plaintiff expressly requested the defendant to cause further manufacture and shipment of the pipe to be deferred until the following spring, which was done ac- cordingly. That the pipe so delivered to the plaintiff under said agreement was in all respects in conformity with the requirements of said agreement, and of the specifications thereto attached, and was capable of standing, and would have stood, a working test in a line of one thousand pounds to the square inch, if such line had been properly laid, and such test made with reasonable promptness, as 34 Plea. » provided in said agreement. That the defendant in all respects fully complied with and performed the said agreement on its part, but that the plaintiff failed and refused to comply with its agree- ment to pay spot cash for said pipe upon delivery, and at all times upon and after October 1, 1890, there was a large balance due from the plaintiff to the defendant in respect to pipe delivered in accordance with said contract amounting to the sum of one hun- dred and fifty thousand dollars ($150,000) which the plaintiff wholly refused to pay, and made various inconsistent and untruthful ex- cuses for such failure and refusal. That said plaintiff failed and neglected to properly lay said pipe, and to make suitable tests thereof with reasonable promptness. That by reason of the failure and refusal of the plaintiff to pay cash for the pipe delivered, as aforeseid, and by reason of the un- founded claims of the plaintiff in respect to the defective quality of said pipe, the defendant was unable to pay the various manufac- turers, with whom it had contracted as aforesaid, the amounts due them respectively for pipe delivered, as provided in the contract, and was unable to secure from them the further performance of their respective contracts to manufacturers. That by reason of the inability and failure of the defendant to make such payment, the said manufacturers duly notified the defendant, and the de- fendant in turn duly notified the plaintiff that said manufacturers had purchase material for the performance of said contracts, which material was useless to them, except for that purpose, and that the same would be sold at the market price, and the loss charged against the defendant, which was done accordingly; and thereby the defendant became and is subject to claim and liability from said manufacturers for special damage to a large amount, to wit: one hundred thousand dollars ($100,000) by reason of the default of the plaintiff in performance of its said agreement. Further, that Morris, Tasker & Company, above mentioned, fully performed their agreement for the manufacture of twenty miles of said eight-inch pipe, and said pipe duly delivered to and received by the plaintiff, but by reason of the refusal of the 35 plaintiff to pay for same, the defendant was compelled to and did withhold the payment of a balance due to said Morris, Tasker & Company, therefor, and thereupon said Morris, Tasker & Company on the 24th day of September, A. D. 1891, commenced suit in this court for the recovery of the balance due them, as aforesaid. Thereupon the defendant formally notified the plaintiff of the commencement of said suit, and called upon the plaintiff to come in and defend the same by showing, if such were the fact, that said pipe was not in conformity with the requirements of the contract aforesaid. That the plaintiff refused to become a party of record Plea. 35 in said suit, and refused upon formal demand to furnish the de- fendant the names of witnesses by whom said defense could be es- tablished; That thereupon the defendant caused subpoenas to be served upon such persons as it could find who might be able to give evidence tending to establish such defense. That thereafter, on the 27th day of April, 1893, said cause came on for trial, the attor- ney for the said Columbus Construction Company being present in court during all the time of such trial, and that full defense was made by this defendant, and an opportunity given the plaintiff to produce additional witnesses in that behalf. That as the result of said trial said court found and adjudged that said pipe was in all respects conformable to the requirements of said contract, and ren- dered judgment in favor of said Morris, Tasker & Company against this defendant in the sum of $8,890.71, being the full amount claimed by Morris, Tasker & Company as the balance due upon said agreement. That this defendant promptly notified the plain- tiff of the entry of said judgment, and called upon the plaintiff to perfect and prosecute an appeal therefrom, if it desired further to contest the same. Butthe plaintiw refused so todo. Where- fore, this defendant insists that as to the pipe furnished by said Morris, Tasker & Company, the finding and judgment of this court, as aforesaid, constitutes an adjudication, which is binding upon the plaintiff, that the pipe furnished by said Morris, Tasker & Com- pany was in all respects in compliance with said agreement. That this defendant, in addition to the balance due to it for pipe and its liability to damages to the manufacturers of the pipe, as aforesaid, delivered as aforesaid, has become liable to damages claimed by said manufacturers for loss of profits upon the unfufilled portions of their contracts to a large amount, to wit: one hundred thousand dollars ($100,000), and the defendant has lost and been deprived of its commission of two and one-half per cent. (24 per cent.) on all the pipe purchased an to be purchased under said agreement, amounting to the sum of one hundred thousand dollars 36 ($100,000) to the damage of said defendant in the sum of five hundred thousand dollars ($500,000), which sum it claims in this suit by way of set-off, recoupment and counterclaim. CRANE COMPANY, By WILLIAMS, Hott & WHEELER, Attorneys for Defendant. E. WALKER, Of Counsel. (Endorsed): Filed June, 1893. S. W. BurnHAM, Clerk. Ple 19 36 Amendment to Declaration. : Afterwards, to wit: on the sixth day of June, 1894, came the plaintiff, by Campbell and Custer, its attorneys, and filed in the clerk’s office of said court its amendment to its declaration, which said amendment to declaration is in the words and figures follow- ing, to wit: AMENDMENT TO DECLARATION. NORTHERN DIstTRICT OF ILLINOIS, UNITED STATES OF AMERICA, ss NORTHERN DIVISION. IN THE CIRCUIT COURT CF THE UNITED STATES FOR SAID DISTRICT AND DIVISION. Columbus Construction Company vs. Assumpsit. Crane Company. And now comes the said plaintiff, by Campbell & Custer and George Hunt, its attorneys, leave of court having first been had and obtained therefor, and amends its declaration heretofore filed herein by the addition of a new count thereto, in words and figures as follows, to wit: 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 as the agent of this plaintiff, and to deliver to said plaintiff, and in consid- eration 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 to the declaration herein, are hereby made a part hereof, said plaintiff agreed to receive of the defendant and pay the defendant for wrought iron standard line pipe, as follows, that is to say: Two hundred and sixty miles of eight-inch wrought iron standard 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 37. 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 totwenty 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 Amendment to Declaration. 37 to weigh not less than 7.35 pounds per lineal foot exclusive of A weight of collar. Six thousand feet of 58 wrought iron standard J casing, and that the price to be paid therefor as aforesaid should be not 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 thereafter agreed upon between the parties. Which said price of ninety-one cents should include as a part thereof two and one-balf per cent. as a commission or compensa- tion to be paid to said defendant, which said pipe the said defena- 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 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 ali of said pipe should be in conformity with certain specifications, and certain conditions and tests as to quality, 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 as 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 by said plaintiff under said working pressure, which said working 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 defective character, until the whole should have been laid and tested in line and approved. 38 And that heretofore, and after the date of said agreement as aforesaid, to wit: on the first day of July, in the year 18go0, at Chicago, in said district, the said defendant company furnished to the plaintiff a statement showing the prices at which said defend- ant would deliver to the said plaintiff the said pipe so agreed to be bought and delivered as aforesaid, and that the prices so fixed, as aforesaid, were sixty miles of eight-inch pipe manufactured by the de- 38 Amendment te Declaration. Page Tube Company at eighty-eight and five-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 said eight-inch pipe manufactured by the Pitts- burgh Tube Company at eighty-eight and six-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 Spang, 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 of August, 1890, to No- vember 3, 1890, the said defendant delivered to the said plaintiff 95.14 miles of eight-inch pipe purporting tc 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 day of September, 1890, the said defendant did ac- cordingly deliver to said plaintiff 10.11 miles of ten-inch pipe, which purported to be of the character which it had by said con- tract agreed to deliver 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 said contract the said defendant was bound to deliver to the said plaintiff, and that at various dates, to wit: from the 25th of August to November 3, 1890, the said de- fendant delivered to the said plaintiff 3.54 miles of four-inch pipe which purported to be of the character and quality which by 39 =the contract as aforesaid the said defendant was bound to de- liver 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 deliver to said plaintiff. Amendment to Declaration. 39 All of which was caused to be so shipped by the said defend- ant 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 promptly delivered upon orders of the said plaintiff to the said de- fendent therefor. That said defendant at various dates, to wit: from August 23d to August 28th, 1890, delivered to said plaintiff, as in compliance with its said contract, 6,000 feet of five and five- eights 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 line, 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. 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- gently 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 or character provided for in said contract, but were largely unfit for the pur- pose of said contract, and were of little value, and the plaintiff says that by reason thereof it was compelled to and 40 did necessarily expend a large sum of money in and about the purchase of other goods, wares and merchandise to supply the place of the insufficient and defective goods, wares and merchan- dise so furnished as aforesaid, amounting to to wit, the sum of two hundred thousand dollars over and above the said contract price of the said defective and insufficient goods, wares and merchandise so de- 40 Amendment to Declaration. furnished as aforesaid by the defendant, and also necessarily laid out and expended a large sum of money to wit, two hundred thou- sand dollars in and about the taking up of such defective and in- sufficient pipe so furnished as aforesaid, as had been laid in line in the ground by the plaintiff while confiding in the promise of the defendant that said pipe was of the quality and character provided for in said contract and in and about unscrewing the same and tak- ing the defective and insufficient collars therefrom and replacing such collars with other and sufficient collars and again laying said pipe, and in and about the rethreading and repairing of such por- tions of said defective and insufficient pipe as it was necessary to rethread and repair in order to make it in those respects of the kind and character provided for in said contract, and in and about the taking the defective and insufficient collars from the other of said insufficient and defective pipe furnished as aforesaid, which had not been laid in line, and replacing said collars with other and in- sufficient collars, and in and about the loading and hauling to and from the thread mills of such portions of said defective and insuffi- cient pipe as it was necessary to rethread and repair for the pur- pose aforesaid, all of which sums of money the plaintiff says were necessarily and reasonably expended in order that the pipe when laid would stand the tests and fulfill the requirements hereinbefore and in said contract set forth, 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 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 two hundred thousand dollars 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, 41 inthe 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 reason of the premises as afore- said. CAMPBELL & CUSTER, and GEORGE Hunt, Attorneys for Plaintiff. (Endorsed): Filed June 6, 1894. S. W. Burnuam, Clerk. Additional Counts. 4l Afterwards, to wit : on the twenty-ninth day of October, in the October adjourned term of said court, 1894, in the record of pro- ceedings thereof in said entitled cause before the Hon. Peter S. Grosscup, District Judge, appears the following entry, to wit : Columbus Construction Company ] VS. . Crane Company. \ Now come the parties by their attorneys, and on motion of plaintiff leave is given it to file additional countsinstanter. And on defendant’s motion it is ordered that the plea and notice of set-off to the original declaration, stand as two additional counts. On the same day, to wit : the twenty-ninth day of October, 1894, came the plaintiff in said entitled cause by its attorneys, and by leave of court first had and obtained filed in the clerk’s office of said court its additional counts, which said additional counts are in words and figures following, to wit: 42 ADDITIONAL COUNTs. UNITED STATES OF AMERICA, NORTHERN DIsTRICT OF ILLINOIS, - ss. NORTHERN DIVISION. IN THE CIRCUIT COURT OF THE UNITED STATES FOR SAID DiIsTRICT AND DIVISION. Columbus Construction Company ) VS. - Assumpsit. Crane Company. And now comes the said _ plaintiff, by Campbell & Custer, and George Hunt, its attorneys, leave of court having first been had aud obtained therefor, and amends its declaration heretofore filed herein, by the addition of new counts thereto, in words and figures as follows, to wit: And for that, whereas, also, heretofore, to wit: on the 28th day of June, in the year 1890, to wit: at the city of Chicago, in said district, by a certain contract in writing then and there made between the said plaintiff on the one part and the said defendant on the other part (which contract, with the papers referring to the subject-matter thereof, and attached to the declaration herein, are Additional Counts. 42 » hereby made a part hereof) it was agreed in manner and form fol- ’ lowing, that is to say: That the said defendant would purchase as the agent of said plaintiff at the lowest obtainable price, which price should include freights to the point of delivery, same not to exceed the current rate of freight from point of shipment to Chicago, and would de- liver to said plaintiff, and in consideration of the facilities and rep- resentations of the defendant, made to said plaintiff as in said con- tract alleged, said plaintiff would receive of the said defendant and pay said defendant for, wrought-iron standard line pipe as follows, that is to say: two hundred and sixty miles of eight-inch .wrought- iron standard line pipe to weigh not less than 27.48 pounds per lineal foot. Ten to twenty miles of ten-inch wrought-iron stand- ard 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 col- lar. Six thousand feet of 5 5-8 wrought-iron standard casing; 43 that the price to be paid therefor as aforesaid by the said plaintiff, including commissions or compensation of two and one-half per cent. to be paid to the said defendant, should be not 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; that the said defendant would, unless prevented by strikes or other causes beyond its control, deliver said pipe or secure the de- livery thereof to the said plaintiff, during the months of July, Au- gust and September, at such places as should be thereafter desig- nated by the said plaintiff, and not later than October 1, 1890, and would deliver all the eight-inch pipe aforesaid, unless so prevented as aforesaid, so that not less than thirty-seven miles thereof should be delivered in July, not less than one hundred and twenty-three miles in August, and all the remainder thereof undelivered, in Sep- tember, 1890, and prior to the fifteenth day of that month if pos- sible; that the said defendant would so as aforesaid purchase and deliver, and the said plaintiff would take, all the wrought-iron standard line pipe aforesaid, in conformity with certain specifica- tions and subject to certain conditions and tests more fully set forth and specified in the certain contract and specifications for standard eight-inch line pipe which were attached to said contract in writing between the said plaintiff and detendant and made part thereof, marked Exhibit ‘‘ B,” that is to say, that all of said wrought-iron Additional Counts. 43 standard line pipe 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 and to prove tight in line, when proved and tested in line under said working pressure, which said working tests should be made with reasonable promptness, that each joint of pipe furnished under said contract should have eight threads to the inch and at least two inches of thread on each end, and that full, uniform taper should be given to the threads both on the pipe and in the collar, that the said plaintiff would pay to the said defendant the stipulated price in cash for said pipe, so to be purchased and delivered as aforesaid, upon the de- livery thereof to the said plaintiff, and that 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 proved. And the said contract in writing being so made as aforesaid, afterwards, to wit: on the day and year aforesaid, at, to wit: the city of Chicago, in said district, as aforesaid, in consideration thereof and that the said plaintiff at the special instance and request of the said defendant had then and there undertaken and faithfully promised the said defendant to perform and fulfill the said contract in all things on the said plaintiff's part and behalf to be performed and ful- 44 filled it, the said defendant, undertook, and then and there faithfully promised the said plaintiff to perform and fulfill the said contract in all things on the said defendant's part and_ behalf to be performed and fulfilled. And the said plaintiff in fact saith that heretofore, and after the making of said agreement as aforesaid, to wit: on the first day of July, in the year 1890, at Chicago, in said district, the said defend- ant furnished to the said plaintiff a statement showing the prices at which said defendant would deliver to the said plaintiff the said pipe so agreed to be purchased and delivered as aforesaid, and that the prices so fixed as aforesaid, were, sixty miles of said 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 manufac- tured by the National Tube Works Company at eighty-eight and five-tenths cents per foot, forty miles of said eight-inch pipe manu- factured by the Pittsburg Tube Company at eighty-eight and five- tenths cents per foot, forty miles of 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 Spang, Chalfant & Company at eighty- eight cents per foot, twenty miles of said eight-inch pipe manufac- ts, Rg 44 Additional Counts. tured 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 four-inch pipe at about thirty cents per foot, ten miles of six-inch pipe at about fifty-five cents per foot, ten miles of ten-inch pipe at one dollar and_ thirty cents per foot, to which said several prices the said 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 making of said contract and the twenty-fourth day of September, 1890, the said plaintiff designated to the said defendant places for the delivery of said pipe, and, to wit: on the 15th day of September, 1890, the said plaintiff notified the said defendant that it would re- quire the delivery of all the pipe contracted for prior to October 1, 18go0, and that at various dates, to wit: from the 21st day of August, 1890, to the 3d day of November, 1890, the said defendant delivered to the said plaintiff 95.14 miles of eight-inch pipe, as and for, and which purported to be of the description, character and quality which by the said contract, the said defendant was bound to deliver to the said plaintiff, and at various dates, to wit: from the sixth day of September to the twenty-fourth day of September, 1890, the said defendant delivered to said plaintiff 10.11 miles of ten-inch pipe, as and for, and which purported to be of the de- scription, character and quality which by said contract the said de- fendant was bound to deliver to the said plaintiff, and at 45 various dates, to wit: from the 25th day of August, to the 15th day of October, 1890, the said defendant delivered to said plaintiff 1.94 miles of six-inch pipe as and for, and which purported to be of the description, character and quality which by said con- tract the said defendant was bound to deliver to the said plaintiff, and at various dates, to wit: from the 25th day of August to the 3d day of November, 1890, the said defendant delivered to the said plaintiff 3.54 miles of four-inch pipe as and for, and which pur- ported to be of the description, character and quality whi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0329%3A1. Public record. Not legal advice.