Bleckley, Chief Justice.
In defence to an action upon a contract to mann. facture machinery for a cotton-seed oil-mill, a deduction from the contract price was claimed on two grounds: (1) that the machinery was not first-class, the contract being to supply machinery of that class; and (2) that a delay of some days occurred in completing the woi’k, in consequence of which loss occurred from the decay or deterioration of cotton-seed that had been purchased for use in the mill. The court, in ruling upon the pleas and in charging the jury, recognized both elements of defence, and wc think, correctly.
The principle, as to measure of damages, laid down with reference to deduction from the agreed price on account of defective machinery was the difference between the contract price and the actual value of the machinery suppliedand in reference to the cotton-seed, the measure of damages recognized in the charge of the court was the difference between the value of the seed before they were damaged by delay and their value in their damaged condition. "We approve these measurements.
It was contended that the damage from the spoiled cotton-seed was too remote and uncertain ; but we think not, as the court restricted the jury to the damage contemplated by the parties in the contract. If the damage was not such as was within the contemplation of the parties, it was not matter for recoupment, but if it was within the contemplation of the parties at the time the contract was made, it was the subject-matter of recoupment.
Parol evidence, we think, was admissible to show whether such damage was in the contemplation of the parties. The contract named a time for the machinery to be ready to be put up, and the parol evidence simply went to illustrate the question of whether that time was of the essence of the contract, and whether the purchase of cotton-seed in advance, and therefore the damage .which resulted from supplying a stock of seed and keeping it on hand with a view to having it ready to run the machinery when the time arrived, was within the contemplation of the parties. There was no error in the controlling principles applied by the court in the trial of the case.
Van "Winkle represented the firm of which he was a member in agreeing to the terms and stipulations of the contract. That he was competent as a partner to contract in behalf of the firm touching its business is not controverted, but it is said that he could not, without some special delegation of power to him by his co-partners, render time of the essence of any contract, and bind the firm to abide the legal consequences of so doing. We see no virtue in this position except that of bold and courageous novelty.
When a manufacturer contracts to supply a first-class article, there is no reason for understanding him as stipulating with reference to his own productions, and them only, as a criterion. Why should he be allowed to make the standard and the article both, unless for so doing he provides expressly in his contract ? A first-class cotton-seed oil-mill, and a first-class Van Winkle cotton-seed oil-mill might be very different articles, and very different in value. Eirst-class machinery of a given kind is such as corresponds with the best of the kind in general use, not merely with the best of a single manufacturer ; unless, indeed, the two superlatives coincide, in which case to realize one would be to realize the other also.
It was urged in argument that receiving the machinery was a waiver both of its defects and of damages resulting from its non-delivery in due time. "Why so ? After expensive preparations to have and use a mill, it was probably much better to have one of inferior quality than none at all. Besides, it was perhaps only by trial that the defects were discoverable by the purchasers. Indeed, the evidence appears to so indicate. Under the circumstances, there was no obligation to return the machinery or to offer to return it. The purchasers had a right to rely upon its being first-class until it proved to be otherwise, and then they had a right to stand upon -the warranty of the manufacturer, instead of rescinding or offering to rescind the contract of purchase.
As to the damages resulting from delay, these had already been sustained when the mill was received; its reception, in so far as it affected them at all, could only hinder more from accruing; it certainly could not increase them. There was no inconsistency between reception of the machinery and retention of the claim for damages on account of delay to furnish it by the time stipulated. To hold that there was a waiver by implication would be very unreasonable.
It was also urged that the purchasers lost the right to go upon the manufacturers for charges or reduction of price in consequence of the machinery being inferior; because it appeared, or could be made to appear by evi dence, had the evidence not been improperly rejected, that the mill was not in fact used by the purchasers, but was sold or transferred to a corporation created to run it. We are unable to sec how any sale or transfer made by the original purchasers would protect their vendors from duly accounting to them upon any covenant or warranty connected with that purchase. Such covenant or warranty would not pass with the machinery to the corporation or second purchaser, so as to shift the right of action to the new party. No principle is in sight which would either divest the first purchasers of their right of defence as against the purchase money, or invest the new party with any right whatever as against the manufacturers or first vendors.
It was complained that general questions to a witness on the stand who was one of the parties were not proper questions; that he ought to have been interrogated specifically and not in a general way. We think there is no rule that requires a party, when a witness, to be examined differently from other witnesses, and that to ask him to state the facts and let him state them, is a proper mode of examination. If anything comes out in the course of his statement that is not admissible evidence, it can objected to, and in this case might have been objected to. There was probably some of the witness’s evidence that was objectionable; but it was not objected to. The mode of question was the point of objection, and we think the ruling of the court was correct. Section 3879 of the code, as to examination by written interrogatories, does not apply when the witness is under examination orally in open court.
It was complained that some evidence was rejected; and we think some of it was probably admissible, but its rejection would not be cause for a new trial, under the view we take of the case.
Tlie verdict was for so much with interest, no time being specified from which interest was to be computed. Eor this reason, the verdict is alleged to be wanting in sufficient certainty. "We think, as the principal found was less than the last instalment of the price, the legal import of the verdict is that interest is to he counted from the maturity of that instalment. And the time of maturity is fixed by the written contract declared up>on. Id certurn est quod certuvi reddipotest.
The court did not err in denying the motion for a new trial.
Judgment affirmed.