Syllabus. case agreed by the parties, we decide that the judgment of the Cir cuit Court be, and the same is hereby, affirmed. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, AFFIRMED WITH COSTS. THE WASHINGTON, ALEXANDRIA, AND GEORGETOWN STEAM PACKET COMPANY, PLAINTIFFS IN ERROR, v. FREDERICK E. SICKLES AND TRUMAN COOK. (10 Howard, 419.) 1. Where the declaration contained two counts,-viz., the first upon a special contract that the plaintiff's had placed a machine for saving fuel on board of the steamboat of the defendants, and were entitled to a certain portion of the savings; the second upon a quantum meruit,—it was admissible to give in evidence by the plaintiff's the experiments of practical engineers to show the value of the machine. Evidence had previously been given, tending to prove the value in the mode pointed out in the contract, and the evidence in question tended not to contradict, but to corroborate it. It was therefore admissible under the first count, and clearly so under the second. 2. On the part of the defendants, the evidence of the president of the steamboat company was then given, denying the special contract alleged by the plaintiffs, and affirming a totally different one, namely, that if the owners of the boat could not agree with the plaintiff's to purchase it, the latter were to take it away. The court should have instructed the jury, that if they believed this evidence, they should find for the defendants. 3. The court below instructed the jury, that if the president of the company, acting as its general agent, made the special contract with the plaintiffs, the company were bound by it, whether he communicated it to the company or not. This instruction was right. But the court erred in saying that the plaintiffs had a right to recover on their special count, if the machine was useful to the defendants, without regarding the stipulations of that contract as laid and proved, and the determination of the plaintiffs to adhere to it. Because, by the contract, the defendants are to use the machine during the continuance of the patent-right; and as no time is pointed out for a settlement, a right of action did not accrue until the whole service had been performed. 4. Whether, if there had been a count in the declaration for the cost of the machine, and the jury had believed that the defendants had agreed to pay it as soon as it was earned, the plaintiffs might not recover to that amount, or whether such a construction could be put on the contract as proved, are questions not before the court on this record, and upon which no opiniou is expressed. Statement of the case. C THIS case was brought up by writ of error from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington. It came up upon a bill of exceptions to the admission of certain evidence, and four bills of exceptions to refusals of the court below to grant certain prayers, all of which exceptions were taken by the defendants below-the plaintiffs in error here. But as two of the last-named bills of exceptions were not pressed in this court, it is not necessary to state them, or to state more of the case than is sufficient to show the points argued and decided by this court. In March, 1846, Sickles and Cook brought an action against the Steam Packet Company. The cause of action is thus stated in the declaration: "Whereupon the said plaintiffs, by Joseph H. Bradley, their attorney, complain, for that whereas heretofore, to wit, on the first day. of July, 1844, the said defendants, at the county aforesaid, being the owners of a certain steamboat called the Columbia, and running in the Potomac River and Chesapeake Bay, in consideration that the said plaintiffs, being the proprietors of a certain machine called 'Sickles' cut-off,' designed to effect a saving in the consumption of fuel for steam-engines, would place one of the said machines on the said steamboat Columbia, undertook and promised the said plaintiffs to apply the whole value of the saving of the fuel on board the said boat, which should be effected by the said machine, in the first place, to pay the cost and expenses of building the said machine, and putting the same on the said boat; and thereafter, and after having paid the said costs and expenses, that they, the said defendants, would, so long as the said steamboat should continue to be employed by the said defendants, if the patent-right for the said machine should continue so long, pay to the said plaintiffs three-fourths of the saving in fuel caused by said machine. And that the saving caused by the said machine called the cut-off, on board the said boat, should be ascertained at any time the plaintiff's should desire it, in the following manner, to wit, by taking equal quantities of wood, and using the same first with one and then with the other cut-off, (the defendants then having in use on board their said boat a machine called the throttle,) to show with which the boat would run the longest under the same circumstances. And thereupon the said plaintiffs, confiding in the said promises and undertakings of the said defendants, at great cost, to wit, at the cost of two hundred and fifty dollars, did erect and build, and place on the said steamboat Columbia, at the Statement of the case. request of the defendants, a machine called 'Sickles' cut-off,' which said machine, and the same hath ever since, to wit, from the 20th day of August, 1844, continually, to the beginning of this action, been used by the said defendants in and upon the said boat; and that, on the 19th day of August, 1845, at the county aforesaid, the said plaintiff's gave notice to the said defendants that they would, on the next day, that is to say, on the 20th day of August, 1845, if they desired, make the said experiment in the said agreement mentioned, to test the relative value of the said machine; and, for that purpose, that one of the said plaintiffs would go from Washington to Baltimore, in the said boat, on the said 20th of August, 1845, and make the said experiment; and the said defendants, by their president, did then and there assent thereto, and did direct the officers of the said. boat, or some of them, to aid in conducting the said experiment; and the said plaintiffs, in fact, further say, that one of the said plaintiffs, to wit, the said Truman Cook, did, on the said 20th day of August, 1845, proceed in the said boat from the said city of Washington to Baltimore, in the State of Maryland, and did, on the said voyage, with the assistance of the officers of the said boat, make the said experiment, and did take two piles of wood of equal dimensions and under like circumstances; the pile employed in the use of the throttle cut-off was burned in two hours and seven minutes; and the pile used by the cut-off of the plaintiffs lasted three hours and fifteen minutes, showing a saving in favor of the latter of 34 and 135 per cent., of all which the said defendants had due notice; whereby a great amount and value of fuel has been saved by the said defendants, to wit, the amount of twenty-five hundred dollars; and the said plaintiffs in fact say, they were and are entitled to recover of and from the said defendants, out of the said sum of money, as well as the said sum of two hundred and fifty dollars, as and for the costs and expenses of erecting and building the said machine, and placing the same on the said steamboat, as also the further sum of sixteen hundred and eighty dollars and fifty cents, being three-fourths of the said savings within said period of time after the said machine was put in operation on the said boat, and while the same was used by the said defendants, to the time of the bringing this suit; and being so entitled, the said plaintiffs, to wit, on the day and year aforesaid, and often afterwards, at the county aforesaid, demanded the whole of the said two sums of money, to wit, the sum of nineteen hundred and thirtyseven dollars and fifty cents, of and from the said defendants, and the said defendants utterly neglected and refused to pay the same, or any Statement of the case. part thereof, to the said plaintiffs, and still refuse, to the damage of the plaintiff's four thousand dollars; and therefore they sue. "JOSEPH H. BRADLEY, for Plaintiffs. "Add a count for putting the machine on the boat at the request of the defendants, with a quantum meruit. "JOSEPH H. BRADLEY, for Plaintiffs." The defendants pleaded non assumpsit, upon which issue was joined, and in March, 1847, the cause came on for trial. The following is the evidence offered by the plaintiffs, which, being objected to by the defendants, but admitted by the court, formed the subject of the exception to evidence: "On the trial of this cause, the plaintiffs, to maintain the issue on their part joined, offered and gave evidence tending to show that on or about the 18th day of June, 1844, at the county aforesaid, the said plaintiffs being the owners of the patent-right to a certain machine called a cut-off, of which the said Frederick E. Sickles was the inventor, and the said defendants being the owners of the steamboat called the Columbia, on which they had in use a certain machine called the throttle cut-off, the object of both machines being to save the consumption of fuel in the use of steam-engines, the said plaintiffs made. and entered into a certain contract with William Gunton, the president of the steamboat company, and the general agent thereof, whereby it was agreed that the said plaintiffs should construct and place on board the said steamboat one of their said machines at their own cost and expense; that the same should be tried, and, if it produced any saving, that the cost of putting the said machine in operation on board the said boat, not to exceed two hundred and fifty dollars, should be first paid out of the savings of fuel effected by the said machine; that the said machine should be used by the defendants during the continuance of the patent, if the said boat should last so long; and after the payment of the said costs and expenses of putting the said machine in operation on board the said boat, the savings caused thereby, in the consumption of fuel, should be divided between the said plaintiffs and defendants in the proportion of one-fourth to the defendants and three-fourths to the plaintiffs; and, in order to ascertain the amount of such savings, an experimental trial should be made at any time the plaintiffs should direct it, after the said machine was in successful operation, in the following mode: Two piles of wood should be taken of equal dimensions; one should be used with one of the cut-offs, and the other pile with the other cut-off, under like circumstances, and the length of time required in the consumption of the Statement of the case. said piles of wood, respectively, should be taken as the evidence of the difference in the amount of savings in the one over the other; and if the said machine produced no saving, it was to be taken off, and the boat restored to its former condition, at the expense of the plaintiffs. "That the said contract was wholly in parol, and, within three days after it was made, the plaintiffs entered into a contract in writing with T. W. and R. C. Smith, of Alexandria, by the said plaintiffs, as follows: (copied in record :) and the said defendants caused their said boat to lie at Alexandria to have the said machine fitted to her engine; that the said T. W. and R. C. Smith proceeded with all convenient dispatch to make the said machine, and put the same on board the said boat, at the cost of two hundred and forty-two dollars; that the same was completed and placed on board the said boat, and in complete action, on the 9th day of November, 1844, with the knowledge of the defendants, and that the same was continually thereafter, to the bringing of this suit, used by the said defendants on board the said boat. "That on the 19th day of August, 1844, the said Truman Cook, one of the said plaintiffs, gave notice, on board the said boat, to the said defendants, by William Gunton, president as aforesaid, that they desired on the next day, the same being the regular day for the pas sage of the said boat from the city of Washington to Baltimore, to go on the said trip and make the experiment, provided by their said contract, to ascertain the saving caused by the said machine; and the said William Gunton, president as aforesaid, directed the officers of the said boat, or one of them, to take care that the said Cook did not throw sand in his eyes; and on the said 20th day of August, 1844, the said Cook, one of said plaintiffs, did in fact go from the city of Washington to Baltimore on board the said boat, and the said experiment was in fact made, under the superintendence of the officers of said boat on behalf of said defendants, and by the said Cook on behalf of said plaintiffs, and the whole was, at the request of plaintiffs, carefully observed and noted by Captain Job Carson, for many years mate and captain of a steamboat, and the result of the said ex periment was, that the said machine of said plaintiffs caused a saving of fuel, over and above the said throttle cut-off,' of 34135 per cent.. and full, minute, and accurate minutes of the said experiment, and of the result thereof, were taken and made in writing by the officers of the said boat, or one of them; that the average consumption of wood on her said trip to Baltimore was cords, and on her trip from Baltimore was cords, and the average price of wood, during the period she ran, from the 9th of November, 1844, to the bringing |