Kirkpatrick v. Fairbanks, Morse & Co.

McLUCAS, J.,

pro tem.

— Plaintiff appeals from a judgment of dismissal after demurrer had been sustained to plaintiff’s fourth amended complaint with leave to amend, and plaintiff had failed to amend his complaint. The demurrer was both general and special.

It is alleged in the complaint that the parties entered into a certain contract on the twenty-fifth day of March, 1922, wherein the defendant agreed to furnish plaintiff an oil engine, together with appliances and equipment specified in said contract, and to furnish a competent erector for installing the said engine and appliances, and to cause the same to be properly installed on a foundation in a workmanlike manner; that a copy of the contract was attached to the complaint and made a part thereof. The contract was in the form of a proposal signed by the defendant

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and accepted by the plaintiff, wherein the defendant proposed to furnish and deliver an oil engine, a pump outfit and certain equipment. The contract contained the following language : “You are to furnish necessary cement and gravel for foundation. We furnish competent erector for installation and to give operator necessary instructions on operation of engine.” The terms of payment were, payment of the purchase price thirty days from date of contract after shipment; title to remain in defendant until final payment was made. The complaint further alleged that defendant did install said engine on the premises of plaintiff; “that pursuant to the terms of said contract the said defendant was to build and construct, on said premises, in a good and workmanlike manner, a cement foundation on which said engine was properly to be installed; that said engine and appliances were to be installed in such manner as to operate one certain pump of the defendant for the purpose of raising water from the well or wells of plaintiff to the surface for the irrigation of plaintiff’s land and crops, all of which the defendant well knew”; that the erector furnished by the defendant was not a competent erector, and that defendant failed, neglected, and refused to install said engine and appliances in a good and workmanlike manner; that said engine and appliances were installed in a negligent and unworkmanlike manner in that the engine was anchored to the foundation in such manner that would not enable said engine to be aligned with the pump so as to pump water for the irrigation of plaintiff’s premises; that the engine was so installed that the stud-bolts of the cylinder-head pitted against the anchor-bolts, thereby weakening the stud-bolts and tending to warp alignment of the piston in the cylinder, to the great damage of the engine; that the exhaust drum was so suspended from the cylinder-head that the weight of the drum and the exhaust of the engine would strain the cylinder; that by reason of the misalignment it was impossible for the belt connecting the engine and pump to operate the pump; that the engine as installed was worthless to plaintiff as a means of operating the pump. The complaint stated: “That the said defendant well knew that the said engine was installed for the purpose of operating the pump attached to the well or wells of the plaintiff on the premises