Wholesalers Board of Adjusters v. Norton

ROTH, J.,

pro

tem.

Appellant corporation is the assignee of The Cleaners Equipment Corporation, which latter corporation, on September 14, 1931, entered into written contract with respondents herein, whereby it agreed to sell, on conditional sale, cleaning equipment described in the contract, which contract guaranteed that the equipment would “supply 700 gallons of clean solvent per hour”, and contained other guaranties of parts of the equipment against defects therein by reason of faulty material or workmanship. The contract also provided, “This instrument covers all conditions of this contract ... no other agreement or representation is binding to us.”

Defendants made a down payment of $800 on the purchase price, and provided for the payment of the balance by a

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series of promissory notes made and executed by them. The first four notes were paid in the aggregate sum of $419.08. Thereafter defendants refused to pay and did not make any further payments, and, action having been instituted for the balance, defended on the ground of fraud and breach of warranty.

Pursuant to the terms of the contract, plaintiff’s assignor installed the equipment. There were, however, repeated complaints that the same did not operate in accordance with the expressed terms of the contract and oral representations which had been made prior to the execution thereof. In response to repeated complaints, appellant’s assignor made repeated efforts to correct the system, which were unavailing, and on November 16, 1931, the parties entered into a supplemental agreement whereby- the corporation agreed to install equipment capable of furnishing solvent at the rate of 1800 gallons per hour, in lieu of the equipment theretofore installed, which equipment had been warranted to furnish solvent at the rate of 700 gallons per hour. The trial court found the supplemental agreement to be as follows: “It has been agreed between the Ceco Cleaners and the Cleaners Equipment Corporation, to replace the present 12 A Ceco ‘Sweetner’ System, which is guaranteed to deliver 700 gallons of clean solvent, per hour, with a 9C type system which is guaranteed to deliver 1800 gallons of solvent per hour. This change will be made at once without any additional expense to the Ceco Cleaners; the present contract to remain unchanged. Payments to be deferred for 60 days or to start Jan. 20, 1932.”