This is an action at law, brought in the circuit court of the United States for the Southern district of Ohio, by the American Pressed Tan Bark Company, a New Jersey corporation, against Theodore J. McGowan and Robert C. Bliss, partners under the firm name of the McGowan Pump Company, doing business at i ncinnati, Ohio, to recover damages for the alleged breach by the defendants of a contract for the construction and erection of machinery upon a steam-boat. The petition by which the action was commenced sets forth a contract entered into on the twenty-third of June, 1881. After a trial before a jury, which occupied 30 days, there was a verdict for the plaintiff for $18,000, and a judgment accordingly, to review which the defendants have brought a writ of error.
The petition alleges that the plaintiff, being the owner of patents for the manufacture and sale of pressed tan bark, entered into a contract with one Mack, of Cincinnati, for the construction of a steam-boat which was to receive, carry, and operate machinery to be erected on it by the defendants under the contract sued upon, and was to be constructed, by agreement with the defendants, under their control and supervision, and to their acceptance, and that the boat was so constructed by Mack, and was accepted by the defendants. The contract between the plaintiff and Mack for the construction of the boat was in writing, and was made on the seventeenth of June, 1881. It contained the particulars as to the size and material and mode of construction of the boat, and stated that its construction and acceptance, on the part of the plaintiff, was left with 'Theo. J. McGowan & Bliss,' and that it was to be finished and delivered afloat to the plaintiff on or before August 26, 1881. The petition alleges that this contract with Mack was made with full knowledge, on the part of the defendants, of the purpose for which the boat was being constructed, and with their direction, counsel, and advice.
The written papers constituting the contract between the plaintiff and the defendants were as follows: On the twenty-third of April, 1881, the defendants, using the signature 'Theo. J. McGowan & Bliss,' wrote from Cincinnati to A. G. Darwin, the president of the plaintiff, the following letter:
'CIN'TI, O., April 23, 1881.
'A. G. Darwin-DEAR SIR: We here with submit plan for bark press, two views, one plan and the other elevation. They were gotten up in great haste, and are not as full as they should be, but they show what our ideas are. The operation is 2 12" hyd. presses, E, E, one on each side of 20" hyd. press, D, to remove the bark from containing cyl. G, alternately, after being pressed in 20" hyd. press, D. They pass from the hyd. press, E, to hyd. press, D, by a track, and are filled at top end from floor above, and the bale is also delivered from top end of containing cyl. onto the floor from which cylinders are filled. F is a chamber 40" in diameter and 12 feet high, and is supplied with water and air by steam-pump, A, which keeps up a pressure in F to 300 lbs., to operate the hyd. presses rapid at beginning pressure in hyd. press beyond 300 lbs., hyd. pumps, B and C, have raised the pressure in hyd. press beyond 300 Ibs., the check-valves close and shut off connection between hyd. presses and pressure chamber. Then the hyd. pumps, B and C, complete the pressure until bale is pressed in 20" press, and bale removed from containing cyl. The hyd. pump, C, is used exclusively for 20" hyd. press, and hyd. pump, B, is used for the two 12" presses, E, E. The hyd. pumps are independent of each other, and each has its own steam cyl. The steam-pumps use the water over again from tank from which it has been delivered from hyd. presses. The operation is about as follows. The containing cyl. is filled from upper floor, is run under 20" press, and pressed up to desired pressure; it is then run on track to 12" press, where it is forced from containing cyl., which is again filled and operation repeated, and, while cyl. is being emptied, the other is going through 20" press, and so on. Work is done very rapidly and well. 20" press can be used up to 1,500 tons pressure.
'Trusting this hurried explanation is satisfactory, and that we may have your favors. Yours, etc.,
THEO. J. MCGOWAN & BLISS.
'P. . Time required for each pressing and delivery of bale 2 1/2 minutes. We guaranty the whole.'
On the twentieth of May, 1881, the following letter, signed 'The McGowan Pump Co.,' was written to Darwin:
'CINCINNATI, O., May 20, 1881.