Hagan v. Allen

MOORE, P. J.

The questions for decision are: whether respondent contracted to install a steam generator and whether the evidence supports the findings.

• Appellant manufactures cheese. Respondent fabricates steam generators. On August 2, 1946, respondent through its president Allen contracted to construct and deliver a steam generator to appellant’s place of business. At the same time respondent advised appellant that a steam separating tank should be attached to the steam generator to insure the delivery of dry steam under usual working conditions; that an expert would be required to set the controls initially but anyone thereafter could operate it. In response to such statements appellant informed respondent that he and his employees would “build and attach the steam separating tank.” Respondent built the generator and on August 9, 1946, delivered it to appellant’s place of business. After the generator had been installed appellant changed the controls and adjustments and did not attach a steam separating tank. On discovering such conditions respondent instructed appellant that the controls and adjustments must not be changed and that the separating tank must be attached in the absence of an expert to operate the generator. From appellant’s refusal to follow respondent’s advice, his damage resulted and this action was commenced to recover damages for spoiled cheese and loss of profits allegedly due to breach of warranty. Respondent counterclaimed for the price of the generator.

[856]

Appellant asserts that because respondent was not licensed to install steam equipment the latter was precluded from recovering on its counterclaim the contract price of the generator, citing sections 7031 of the Business and Professions Code.

*

Thereby appellant overlooks the fact that respondent's claim was not based upon services rendered in installing the generator, but upon the contract price for the equipment delivered. Allen informed appellant that his company had no contractor's license and appellant thereupon took full responsibility for the installation. There is no proof that by their contract the parties contemplated that respondent should install the equipment nor may such an inference be drawn from the testimony of Allen, to wit: “We proceeded to help in the installation of the job.” The effect of the contract was the sale of a steam generator and nothing more.