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Citations for Defendant in Error.

price to examine and test subject to approval. Witherby v. Sleeper, 101 Mass. 138; Fairfield v. Madison Manufacturing Co., 38 Wisconsin, 346; Dewey v. Erie Borough, 14 Penn. St. 211; S. C. 53 Am. Dec. 533; Spickler v. Marsh, 36 Maryland, 222; Prairie Farmer Co. v. Taylor, 69 Illinois, 440.

II. But if it be held that the contract in this case is subject to a different rule from that laid down in the cases already cited, in other words, that these cases do not state the law, then we claim that the doctrine invoked by the defendant ought not to be applied to this case: 1st. Because the notice served does not convey any intimation of such expenditures as were charged: 2d. Because such alleged damages were manifestly not within the contemplation of the parties: 3d. Because the rule invoked by the defendant is not the proper test and measure of damages in such case. White v. Brockway, 40 Michigan, 209; Merrill v. Nightingale, 39 Wisconsin, 250; Boothby v. Scales, 27 Wisconsin, 626; Bonnell v. Jacobs, 36 Wisconsin, 59.

III. It has long been the settled doctrine of the State of Wisconsin that a party may return or offer to return an article which does not comply with the terms of the warranty, and recover back what he has paid. Woodle v. Whitney, 23 Wis

consin, 55.

IV. A question is raised as to the admissibility of Geissner's testimony to show the rental value of the mill. The plaintiff in error submits that this evidence ought not to have been excluded. Butler v. Mehrling, 15 Illinois, 488; Alfonso v. United States, 2 Story, 421; Sturgis v. Knapp, 33 Vermont, 486; Whitbeck v. N. Y. Central Railroad Co., 36 Barb. 644; Whitney v. Thatcher, 117 Mass. 523; Cliquot's Champagne, 3 Wall. 114.

Mr. John T. Fish, for defendant in error, cited: Snyder v. Western Union Railroad Co., 25 Wisconsin, 60; Clark v. Baird, 9 N. Y. (5 Selden) 183; Teerpenning v. Corn Exchange Insurance Co., 43 N. Y. 278; Lincoln v. Saratoga & Schenectady Railroad, 23 Wend. 425; Brill v. Flagler, 23 Wend. 354; Norman v. Wells, 17 Wend. 136; Lamoure v. Caryl, 4 Denio,

Opinion of the Court.

370; Transportation Line v. Hope, 95 U. S. 297; Stone v. Covell, 29 Michigan, 359; Clark v. Rockland Water Power Co., 52 Maine, 68; Westlake v. St. Lawrence Ins. Co., 14 Barb. 206; Tucker v. Mass. Central Railroad Co., 118 Mass. 546; Pennsylvania Company v. Roy, 102 U. S. 451.

MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court.

The principal "position taken in the argument for the plaintiff is that the defendant, having received and retained the machinery furnished under the contract sued on, was bound to pay the contract price; and in support of this position cases were cited, holding that under a contract to manufacture or to furnish a chattel satisfactory to the purchaser, the purchaser, if he takes possession of and uses it, thereby conclusively accepts it as satisfactory, and binds himself to pay the whole contract price.

Considering the instructions given at the plaintiff's own request, and the grounds on which the plaintiff excepted to the other instructions of the court, it is, to say the least, doubtful whether this point is open. But, assuming it to be open, it clearly cannot be sustained, and the cases cited are inapplicable.

The plaintiff's agreement was not for a sale of the machinery, subject to a condition that it should be satisfactory to the purchaser. But it was an agreement, not only to furnish machinery of a certain description and quality, but also to set it up and put it in complete operation in the defendant's mill. The machinery was to be erected on the defendant's land and made part of his mill; and one instalment of the price was to be paid on the delivery of the machinery there, and before the plaintiff had completed the work to the satisfaction of the defendant. In such a case, it would be most unreasonable to compel the defendant, in order to entitle him to avoid paying the whole contract price, or to recover damages for the plaintiff's breach of contract, to undergo the expense of taking out the machinery, and the prolonged interruption of his business

Syllabus.

during the time requisite to obtain new machinery elsewhere. The rule of damages, adopted by the court below, of deducting from the contract price the reasonable cost of altering the construction and setting of the machinery so as to make it conform to the contract, is the only one that would do full and exact justice to both parties, and is in accordance with the decisions upon similar contracts. Benjamin v. Hillard, 23 How. 149; Railroad Co. v. Smith, 21 Wall. 255; Marsh v. McPherson, 105 U. S. 709, 717; Cutler v. Close, 5 Car. & P. 337; Thornton v. Place, 1 Mood. & Rob. 218; Allen v. Cameron, 3 Tyrwh. 907; S. C. 1 Cr. & M. 832.

The notice given by the defendant to the plaintiff "to put the mill in repair so as to do good work" was sufficient to cover all alterations necessary to accomplish that end.

No error is shown in the exclusion of Geissner's testimony as to the rental value of a mill which he had never seen and knew nothing of. Whether a witness called to testify to any matter of opinion has such qualifications and knowledge as to make his testimony admissible is a preliminary question for the judge presiding at the trial; and his decision of it is conclusive, unless clearly shown to be erroneous in matter of law. Perkins v. Stickney, 132 Mass. 217, and cases cited; Sorg v. First German Congregation, 63 Penn. St. 156.

Judgment affirmed.

BUTLER v. BOSTON AND SAVANNAH STEAMSHIP

COMPANY.

SAME v. SAME. ·

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

Nos. 244, 340. Argued April 10, 11, 1889.- Decided April 22, 1889.

The provision in Rev. Stat. § 4283, limiting the liability of the owner of a vessel, applies to cases of personal injury and death, as well as to cases of loss of or injury to property.

Statement of the Case.

When proceedings have been properly begun in admiralty by the owner of a vessel to limit his liability under Rev. Stat. § 4283, and monitions have issued and been published, it becomes the duty of all claimants, whether for loss of property or injury to the person, or loss of life, to have the liability of the owner contested in that suit, and an allegation that the owner himself was in fault does not affect the jurisdiction of the court to entertain the cause of limited liability.

The steamboat inspection act of February 28, 1871, 16 Stat. 440, c. 100, Rev. Stat. Title LII, does not supersede or displace the proceeding for limited liability in cases arising under its provisions.

Whether the act of June 26, 1884, 23 Stat. 53, c. 121, § 18, is intended to be explanatory of the intent of Congress in its legislation concerning limited liability of shipowners, quære.

In the absence of an allegation to the contrary, it will be presumed in a limited liability case in admiralty that the captain and the first mate of a sea-going coast-wise steamer were licensed pilots.

The law of limited liability was enacted by Congress as part of the maritime law of the United States, and is coëxtensive in its operation with the whole territorial domain of that law.

While the general maritime law, with slight modifications, is accepted as law in this country, it is subject under the Constitution to such modifications as Congress may see fit to adopt.

The Constitution has not placed the power of legislation to change or modify the general maritime law in the legislatures of the States. The limited liability act (Rev. Stat. 4282-4285) applies to the case of a disaster happening within the technical limits of a county in a State, and to a case in which the liability itself arises from a law of the State. Whether a law of a State can have force to create a liability in a maritime case, within the dominion of the admiralty and maritime jurisdiction, where neither the general maritime law nor an act of Congress has created such liability, is not decided.

The City of Norwich, 118 U. S. 468, affirmed as to insurance money.

THE Court, in its opinion, stated the case as follows:

The two cases are so intimately connected, both in the proceedings and in the questions arising therein, that it will be most convenient to consider them together. They arose out of the stranding, sinking and total loss of the steamship City of Columbus, on Devil's Bridge, near Gay Head, at the western extremity of Martha's Vineyard, and near the mouth of Vineyard Sound, on the 18th of January, 1884. Most of the passengers and cargo were lost, and amongst the passengers lost was Elizabeth R. Beach, a single woman, of Mansfield,

Statement of the Case.

in the State of Connecticut. The appellants represent her, Nathaniel Beach being appointed administrator of her estate in Connecticut, Butler being appointed ancillary administrator in Massachusetts, and the other two appellants being, one an aunt, and the other a niece of the deceased, dependent on her for support. The appellees, The Boston and Savannah Steamship Company, were the owners of the ship.

Soon after the disaster occurred, and early in February, 1884, one Brown and one Vance commenced each of them an action at law against the steamship company, in the Superior Court of the county of Suffolk, in Massachusetts, to recover damages for losses alleged to have been sustained by them by means of the stranding and sinking of the vessel. Thereupon the steamship company, on the 18th of February, 1884, in order to obtain the benefit of the law of limited liability, filed a libel in the District Court of the United States for the District of Massachusetts, against the said Brown and Vance, and against all other persons who had suffered loss or damage by said disaster. This is one of the cases now before us on appeal. The libel was in the usual form of libels in causes of limited liability. It set forth the ownership of the vessel, the business in which she was employed, namely, as a passenger and freight steamship between Boston and Savannah, her sea-worthiness, her being well and thoroughly officered and manned and furnished and equipped as the law required. It stated that on the 17th of January, 1884, she left Boston on a voyage to Savannah, having on board about 83 passengers and considerable merchandise, a list of the former, as far as known, and a schedule of the latter, being annexed to the libel. It stated that whilst prosecuting said voyage, and while on the high seas, to wit, in or near Vineyard Sound, the steamship struck on the rocks near and off the shore at Gay Head, in Martha's Vineyard, in the District of Massachusetts, about half past three in the morning of January 18th, 1884, and in a very few minutes thereafter heeled over, filled with water, and sunk, becoming a total wreck and loss; that most of the passengers and crew, about 100 in number, were drowned and lost, those surviving claiming to have suffered great injury;

VOL. CXXX-34

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