Riskas v. De La Montanya

BRAY, J.

Defendant appeals from a judgment for plaintiff for $3,300 and a denial of relief to defendant upon his cross-complaint.

Questions Presented

1. Was there a warranty of the fitness of the crane ?

2. Should the court have found expressly on accord and satisfaction?

Evidence

Defendant rented a crane from plaintiff’s assignor, Henry A. Tieslau, for a monthly rental of $825.

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Defendant took possession of it on October 18th, moving it to Mare Island. Defendant testified that it repeatedly broke down in use because of mechanical failures which defendant had to repair, and that he was able to use it on the intended job approximately 50 hours only. About December 12th defendant placed the crane in storage. Approximately seven and a half months after the rental agreement was executed, the crane was returned to Tieslau. Plaintiff sued for eight months’ rental less a credit of $412.50, or $6,187.50. Defendant answered, alleging that the crane was not in a condition to perform the work for which it was hired, and that at the request of Tieslau, defendant expended $1,700 for repairs to the crane.

[638]

Defendant eross-complained for that amount. The court found against defendant on his allegations that the crane was unfit and that he repaired it at Tieslau’s request, or that defendant expended $1,700 or any other sum for repairs of the crane. It then found that the balance due plaintiff on said contract of hiring the crane was $3,300 and gave judgment for that amount. It further denied defendant any relief upon his cross-complaint.

1.

Warranty.

This case is primarily a factual one, in which practically all the material testimony of defendant is denied by Tieslau. As to warranty, defendant testified that prior to the execution of the rental agreement he explained to Tieslauthat he intended to use the crane as a dragline crane and told him the character of the work to be done. Tieslau testified that the crane was rigged for both dragline and regular work but that defendant did not tell him what the crane was to be Used for. In fact the work was more or less secret. Tieslau testified that defendant inspected the crane on two occasions before ordering it, that the crane was in reasonably good condition (his son testified to the same effect concerning its condition) and that defendant had agreed to make all the main repairs and to do all maintenance work, and that the work claimed to have been done by defendant was “simply maintenance on the machine.” He further testified that at no time had defendant notified him that the crane was not working properly or needed repairs, also that he had not been informed that the crane was placed in storage and was not thereafter being used.