Birch v. Hale

Belcher, C. In March, 1890, William H. Birch and Company entered into a written contract with the defendant to erect for him in the building situate at the northwest corner of McAllister and Larkin Streets, San Francisco, a safety hydraulic passenger elevator, and to furnish the pumps and. machinery necessary to be used therewith. The contract fixed the price to be paid for the elevator at $1,200, and the parties verbally agreed that the price of the deep-well pump to be put in the cellar of the building should be $565. Before the work was completed Birch and Company assigned the contract and all their rights under it to the plaintiff, and he thereupon proceeded with the work and finished it about April 1, 1891.

Under the contract and pursuant to its provisions, the defendant paid to the contractors sums of money aggregating $4,162. The plaintiff brought this action to recover the balance alleged to be still due and unpaid.

The answer denied that defendant was indebted to plaintiff in the sum named, or in any sum whatever, and alleged payment in full. It then set up as a defense, that the work upon the elevator and its appurtenances was done in such an unskillful and negligent manner that the defendant was obliged to make sundry repairs and alterations upon and about the same, and was thereby damaged in the sum of $829.78.

The water used to lift and lower the elevator, and for other purposes in the building, was pumped by the deep-well pump in the basement to a tank on the top of the building. And one of the complaints on the part of the defendant was that the pipes leading to the tank were put up in such a “crooked manner” that the pump when at work made a great noise and caused the building to shake. The plaintiff testified that the noise was caused by the construction of the pipes, and that the pipes were put up in a crooked manner under the direction of the architect, though he said that direction was not given to him personally. He was then asked: “Did the architect admit that he had given instructions to put up the pipes in that manner?” The question was objected to by the defendant and the objection overruled, and thereupon the witness answered, “Yes, sir.”

[301]The appellant contends that this ruling was erroneous, and that it operated to his prejudice. That the evidence objected to was material is clear. The architect was the agent of appellant in supervising the construction of the building, and if .the pipes were put up in a crooked manner by his direction, then appellant could not be heard to complain that, by reason of this improper construction, the pumping of water through them caused a disturbing noise and vibration in the building. Whether, however, they were so put up or not was a question in dispute. The architect, when subsequently called as a witness for defendant, testified that he gave no instructions to the plaintiff, or to his assignors, concerning the construction of the elevator, and denied that he ever admitted to the plaintiff that the pipes were erected under his direction in the manner in which they were erected.