purpose of which evidently was to define a duty of the plaintiff, the jury was told that:

"For the purpose of charging liability upon the defendant for defects in the pipe and collars as laid, [the plaintiff must be held to a degree of care on its part of like character with that imposed upon the defendant,] to the extent that care and skill in the handling, screwing together, and laying equal in importance sufficiency of the pipe to secure a tight line."

The clause in brackets, and a like clause in the portion of the charge covered by the sixth exception, it is insisted, have relation to the construction of the contract, and carry the implication that the defendant might discharge its obligation under the contract, short of performance, by the exercise of some degree of care or diligence. Neither in the exception nor specification of error is that objection suggested. By the rules it should have been stated definitely as the matter of law excepted to, and should have been specified "separately and particularly" as error in the assignment of errors. It is not an obvious, but, rather, a strained, inference, not likely in itself to have been apprehended by the jury; and other parts of the charge, by which the force of the contract and the obligations thereby imposed on the defendant were clearly and correctly explained, make it impossible that the jury should have been misled as supposed.

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To another part of the charge, to the effect that the plaintiff seeks to recover damages for "defects in the make and quality of the pipe delivered," and that the plaintiff had the burden of the issue, the objection urged is that "this would indicate to the jury that unless the plaintiff could establish, by a preponderance of proof, the existence of defects in the pipe, it must be regarded as up to contract." And to the part of the charge immediately following, which was to the effect that if, on the other hand, the preponderance of evidence showed that the pipe, as received, "was so generally defective in thread and taper, or in the weight or quality of the collars, or both, that it was incapable of meeting the requirements of the contract, and that the defects were not obvious and clearly discov erable upon reasonable inspection on delivery, but could only be ascertained reasonably and fully by a test in line, and if the plaintiff has met all requirements [to be further explained], the finding should be for the plaintiff," it is objected that "this requires the plaintiff to prove that the pipe was so generally defective in thread and taper, or in the weight or quality of the collars, or both, that it was incapable of meeting the requirements of the contract, and that the defects were such, etc. Now, this imports that the plaintiff must prove that owing to these particular defects the pipe leaked. Obviously, this is not correct." And by way of argument it is added that "if the pipe leaked at contract pressure because of inherent weakness, with no defects of manufacture, or in fact for any reason except improper, unskillful, or careless handling or laying by the plaintiff, there was a breach of the defendant's contract." The truth of this proposition is not questioned; it is probably undeniable; but it is inapplicable, not only because not made the subject of an exception, and specified as error, but because the defects referred to by the court were not limited to the results of manufacture. They embraced

every particular in which there was claimed, or evidence was offered to show, a failure to meet the requirements of the contract, namely, "in thread and taper, or in the weight or quality of the collars, or both." All that is embraced in the words "alleged defects in make and quality"; and there was no error in the use of the word "generally," because particular defects were not alleged. If they existed, they were to be eliminated on discovery by inspection or test, and, if they could have been, were not made a subject of dispute. The actual contest was over the question whether the pipe delivered was generally defective, either in thread or taper, or in the weight and quality of the collars; and, that being so, anything in the charge touching other defects would have been irrelevant and immaterial. Another portion of the charge is said to be obnoxious to two objections, neither of which, however, was disclosed in the exception taken or in the specification of error. The instruction referred to consists of three distinct sentences, and as many distinct propositions, any one of which might have been the subject of exception; but the two objections urged are directed to the single proposition that by the contract the Crane Company "did assume and agree to furnish pipe and collars of material, strength, weight, and threading which would substantially conform to the specifications of the contract; and it further agreed and promised that the pipe so furnished should be sufficient in those particulars, when laid in line with due care and skill, to stand a pressure of 1,000 pounds gas to the square inch, and to prove tight in line when tested." Objection is now made to the word "substantially," and to the phrase "in those particulars," as placing an unwarranted limitation upon the responsibility of the defendant; but the particulars mentioned embrace all that was in dispute, and substantial conformity to the specifications of the contract was certainly sufficient if the general requirement was met, that when in line the pipe should prove equal to the stipulated test. As the court proceeded at once to say, "It was the quality and competency of the pipe and collars to this end and test that was thus warranted by the defendant, and not a tight pipe line."

A like objection, not disclosed in the exception or specification of error, is made to another part of the charge on account of the expression "so generally defective in thread, taper, and collars, in weight, thread, and taper," and in another part to the expression "that the defects in the pipe were due to faults in the mill, with which defendant is chargeable"; but in view of the immediate context, and other expressions already referred to, there is no reason to believe that the jury was misled in respect to the obligation of the defendant under the contract.

The court instructed the jury that the provision of the contract requiring the pipe to prove tight in line should "receive a reasonable construction, both with reference to the state of the art of pipe making, and of the piping of gas, as known and existing at the date of the contract, and with regard to the conditions which must be met by this line, owing to its length, the high pressure required, and the need of economy and safety in conducting the gas to de

livery points"; and proceeding, in words embraced in the exception, to refer to evidence tending to show that no gas line had been made which was absolutely tight at even less pressure than that called for in this contract, the court then repeated that "the term 'tight in line,' as employed in this contract, must be interpreted as reasonably tight in line, considering the objects and conditions of the undertaking, and the possibilities of the art and business as existing and understood, according to the evidence." While it would perhaps have been less objectionable if the instruction had been so framed as to leave it more distinctly to the jury to determine in what sense the words "tight in line" were used and understood by the parties, yet the evidence being clear that an absolutely tight line was impossible, and that the managing agent of the plaintiff considered a line tight which leaked in 24 hours as much or even more than 2 per cent. of its contents, we cannot regard the instruction as materially erroneous. Parties to a contract are entitled to its complete, and, when practicable, even literal, performance; but that does not mean that courts and juries shall give to the terms of an agree ment, however clear and unmistakable the ordinary significance of the words employed, a meaning which, when applied to the subjectmatter of the contract, will render performance impossible. It is enough on this point to refer to 1 Greenl. Ev. par. 286.

There was at the trial a question whether the collars should have been recessed so as to admit of calking with lead, and in respect thereto the court instructed that the contract provided for screw joints, not lead joints, and that the absence of a recess or other provision did not of itself constitute a breach of the contract, unless, in the state of the art of pipe making as it was when the pipe was made for delivery under this contract, a provision for lead calking was a mere incident or reasonably necessary to the making of a screw joint, but that if such recess was not a mere incident to a screw joint, but "a separate and additional joint, independent of the screw," "it was no part of the duty of the Crane Company, under its contract, to furnish its collars with such dovetail recess for lead calking." The word "duty," as here used, in connection with the words "under its contract," necessarily means "obligation," and is not objectionable. In other respects the charge was favorable to the plaintiff, because the contract neither expressly nor by any possible implication required more than a screw joint. That only the defendant agreed to make, and covenanted that it would stand the test; and so the jury was clearly and sufficiently instructed in another part of the charge. It was, perhaps, the privilege of the defendant to employ the recess, or any other means necessary to make the joints tight; but, excepting the things specified, there was not, and under no possible conditions of the evidence could there have arisen, an obligation to furnish recessed collars, if without the recess a tight joint was possible. There is no reason to believe that this part of the charge injured the plaintiff. It is not to be inferred that, in our opinion, evidence concerning the use of such recesses was not competent. Evidence that a screw joint could not, in practice, be made securely and permanently tight without the

aid of lead calking, would at least tend to show that the pipe and collars delivered were not in a condition to meet the requirements of the contract, and in all probability the jury took that to be the meaning of this charge. If they inferred more, it was to the injury of the defendant, rather than of the plaintiff in error.

Exception is saved to the following portion of the charge,-the only one which may be said to embrace only a single proposition or matter of law, capable of presentation under the rule by a mere quotation of the language:

"You will bear in mind, gentlemen, that defects here and there in the pipe cannot be recovered for in this action. The plaintiff sues upon a total failure of the pipe. He cannot recover (in this action, at any rate) for defects which may have existed here and there in the pipe. It must be a failure which extends, as I have explained to you, through the whole lot of pipe, so as to make it insufficient for the purpose of that line. And you will then consider the testimony of the inspectors in that view and for that purpose."

Whether or not evidence of "defects here and there in the pipe" -a very indefinite expression, surely--was admissible under the declaration, we need not decide. It does not appear, and is not claimed, that such evidence was offered. The actual contest, as already explained, was over the condition and quality of the pipe and collars used in the construction of the line as a whole. The only proper application of this charge would seem to have been to pipe or collars that were rejected, and not used in the line, because found unfit. It is said in the brief of the plaintiff in error that the injurious character of this charge is apparent from the fact that the undisputed evidence shows that between twenty and twenty-five miles o the pipe in controversy was condemned on a joint inspection by representatives of both parties. It is evident that "defects here and there" could not have been understood by the jury to refer to such a quantity of pipe which had been condemned by mutual agreement. The statement of fact, however, is not fully borne out by the evidence. There was a species of inspection of pipe and collars, which had been delivered along the line, conducted by an agent of the plaintiff with the assistance, going little beyond observation, of a representative of the Crane Company; and joints of pipe and collars found defective in the thread or seam were marked, and written reports thereof were made, which were signed by both agents. But the defects found, it is evident, were, in the main, trifling. They did not prevent the use of the pipe in the construction of the line. The plaintiff's inspector testified that the majority of it was used "right along in making the new line, with the Hequembourg collars." There was no attempt in that inspection to determine whether the defects discovered were attributable to faults in manufacture or in the handling.

Portions of the charge touching the force, as evidence, of certain letters written by Mr. Crane, are objected to on two or more grounds; but, besides failure to take a specific exception and to assign the error accordingly, the letters referred to are in no way identified, nor their place in the record pointed out. We cannot undertake to search for them through a bill of exceptions which fills more than four hundred pages of the printed record.

The following instruction, it is said in the brief, was asked "as to the burden of proof":

"Plaintiff was not bound to receive from the defendant any pipe whatever which did not conform to the requirements of the contract, in its capacity, if properly laid in line, to prove tight in line at a pressure of one thousand pounds to the square inch, gas or air; and, unless you find from a fair preponderance of the evidence that the pipe delivered by the defendant under the contract to the plaintiff, was up to the contract requirements in this regard, the defendant is not entitled to recover the contract price thereof, however you may find as to other matters in evidence."

Without the statement in the brief, it could hardly be suspected that this was designed to be an instruction "as to the burden of proof." No ordinary jury could understand its significance in that respect. It is in itself objectionable. There was no question in the case of what character of pipe the plaintiff was bound to receive, and what it was proposed to say on that point, unless more was added, was liable to be misleading in respect to the liability of the plaintiff to pay for pipe which had been received and used. If the pipe was not up to the contract requirements, under a pressure of 1,000 pounds, and yet was of no less value on that account, being equal to all the requirements of the situation, as altered by the statute limiting actual pressure to 300 pounds, a recovery of the contract price was not improper.

By another part of its charge, after referring to evidence touching the manner in which the pipe was laid, and particularly portions which had to be bent, the court directed the jury to "determine from all the testimony whether the neglects in the manner of screwing together and laying were of such a nature that they could fairly and reasonably account for the leaky quality of the portion of the line which was put together and tested, and for a large portion of the defects which were found by the inspectors in the pipe as examined in November-December, I believe it was-of 1890." The criticism on this, now said to be obvious, but which was not suggested below, is that, of the 106 miles delivered, only twenty miles were laid, and they were not covered by the inspection; that the remaining 86 miles were never laid or screwed together, and therefore it was obviously erroneous to tell the jury that they should determine from all the testimony whether the defects of screwing together and laying were of a nature to account for a large portion of the defects found by the inspectors. No reference has been made to the evidence on which this criticism is based, but, while the last clause of the instruction seems to introduce an element of possible confusion and inconsistenev of thought, it is not to be supposed that a jury of ordinary intelligence, aiming at an honest conclusion, was led thereby to believe it possible, or to understand that the charge was intended to mean, that defects in pipe caused by negligence in screwing together and laying could account for defects found on inspection of other pipe which had never been so treated. Besides, it is not true that the 86 miles of pipe was never laid or screwed together. The testimony already referred to shows the contrary, and it is not impossible that the evidence touching its laying should have thrown light upon, and in some degree should have explained, if it did not strictly account