4
CHANDLER v. THOMPSON. 41
"The controverted issue was whether the failure of the machinery to per-
form the work which it was expected by the defendants, and represented by
the plaintiffs, to perform, was attributable to the fact that it was not of the
requisite capacity, (a 13 horse-power engine,) or defective construction, as
insisted by the defendants; or to want of skill and care in its management. as
insisted by the plaintiffs. With a View to show that the failure of the ma-
chinery was due to the carelessness or want of skill on the part of the defend-
ants, the plaintiffs introduced one Boyd, who had put down the mill as their
agent, and afterwards had been employed by the defendants to examine and
reset it; and~were»pe1·mitted, against defendants’ objection, to put the ques-
tion ¤ whether the defective work and condition of the mill was owing to deg
fective construction, or want of skill or management on the part of defend-
ants.’ The witness answered · tbatyin his opinion, it was owing to want of
proper care and skill in the management} The defendants excepted."· `~·'
The court, upon preliminary examination, had adjudged the witness
Bo dto be an expert machinist. He had been employed in such jart
and trade, both by plaintiffs and defendants, and had acquired jfull
knowledge as to the quality of the machinery, and its horse-powercapacy
ity. ~ He had adjusted and arranged the mill, and itdidigood work.
The mill was subsequently erected at another place, and was put out of
proper order by the unskillful arrangement and management of incom-
petent wmachinists, sawyers, and workmen. I-Ie also further testined
that, by actual measurement, he was satisfied that the engine was of`13
horsepower capacity. The plaintiffs had sold the engine as of ,13 horse-
power, and had, in a printed express warranty, stipulated "that themes
chinery aboye described shadl be well and properly manufactured,. of
good material, and that, with proper management, it will perform well;"
and the defendants, under their hands and seals, had accepted this war-
ranty as a part of the contract, and had also covenanted " to use the said
machinery with reasonable care." `
Thus it appears that proper management was an express stipulation
in the mutual contracts of the parties, and was one of the issues to be
decided by the jury, who were incapable of determining this question
of mechanical skill, and were enlightened, properly, by the opinion of
an intelligent and experienced machinist, formed by his own observa-
tion and actual examination, and not from the testimony of other wit-
nesses. As the value of such testimony was estimated by the jury, and
was subjectto all the tests of truth provided in the well-settled rules of
evidence ,2it cannot, in any manner, be regarded as improperly influencing I
a determination of the general merits of the case. The jury decided
the questions of fact by weighing the testimony of the expert witnesses
on both' sides of the controversy. I ,_
The counsel of defendants, in support of their exception, cited sev-
eral adjudged cases which I cannot conveniently obtain, and must,
therefore, rely on the quotations stated in their brief. l . ,
* The case of Wilson v. Ready, 33 Minn. 503, 24 N. W. Rep;191,seems
to be an authority sustaining the views of the defendants’»counsel;’*but
`I do not concur in the decision, as I understand it from the brief. ~—I
think that, in all cases where questions of special mechanical skill and