Morrow v. Learned

SHAW, J.

this action plaintiff sought recovery upon a promissory note given to him by defendant as part of the purchase price of certain gasoline engines.

The answer admitted the execution of the note, but as a defense and offset to recovery thereon pleaded four counterclaims, in the fourth of which he alleged that on May 24, 1818, defendant purchased from plaintiff seven two-cylinder

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gasoline engines at the price of $200 each, two one-cylinder gasoline engines at the price of $75 each, one three-cylinder gasoline engine at the price of $250, one air-compressor and tanks at the price of $400, and one ■ water-tank at the price of $15, making a total purchase price of $2,215, for which at the time he paid plaintiff the sum of $1,000 and for the balance of said purchase price of $1,215 made and delivered his promissory note of said date, bearing interest at the rate of six per cent per annum, which is made the subject of plaintiff’s action; that at the time of said purchase and as a part of the transaction involving the execution of said note, plaintiff executed a written agreement whereby he warranted that all of said gasoline engines so purchased by defendant were in “first-class mechanical condition”; that at the time of such delivery none of said engines complied with said warranty in that at the time of said delivery, to wit, May 24, 1918, none of said engines were in first-class mechanical condition, and that “the excess of the value which each of said seven two-cylinder gasoline engines would have had if it had been as warranted as aforesaid over its actual value at that time was and is $350; that at that time the excess of the value which each of said two one-cylinder gasoline engines would have had if it had been as warranted as aforesaid over its actual value at that time was and is $175, and that at that time the excess of the value which said three-cylinder engine would have had if it had been as warranted as aforesaid over its actual value at that time was and is $700,” making a total of $3,500.

The court found that at the time of said delivery all of said engines, except two of the seven two-cylinder engines which had been disposed of by defendant, were not in first-class mechanical condition, and that each and all of said engines, except the two two-cylinder engines referred to, were not at the time of their purchase nor at any other time in first-class mechanical condition, and that the excess of value which the said engines would have had if they had been in first-class mechanical condition as warranted over their actual value at the time of their purchase, and at all other times, was and is more than $1,600, a sum largely in excess of that called for by the note. Upon these findings it was adjudged that plaintiff take nothing and that defendant