Tracy Brick & Art Stone Co. v. Wurster

RICHARDS, J.

This is an appeal from a judgment in favor of the defendants upon their cross-complaint in an action brought by the plaintiff to recover an alleged balance of $7,840, claimed to be due for materials furnished by the plaintiff to the defendants at their special instance and re

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quest, of the reasonable value of $15,188.78, upon which certain payments were made, leaving a balance in the amount for which suit was brought.

The defendants in their answer admitted that the stone work and ornamental moldings referred to in the complaint had been delivered to them by the plaintiff for use in the construction of a certain building being erected by the defendants in the city of San Diego, but denied that the reasonable value of said materials was the sum of $15,188.78, or any other sum, and alleged that said materials were of no value whatever. They further presented a cross-complaint wherein it was averred that the plaintiff had delivered to the defendants, at their special instance and request, the stone work and ornamental moldings referred to in the complaint, but that in so doing the plaintiff had represented and warranted to the defendants that said materials so delivered were durable and would stand the weather and climatic conditions existing in the city of San Diego, and were in every way fit and desirable to be used in the construction of the building in which they were to be used; that said stone work and ornamental moldings were, in fact, worthless, and became so disintegrated when used in the construction of said building that it would be necessary to remove all of said material therefrom; that the said defendants had already paid to plaintiff on account of such material the sum of $7,348.37, the return of which sum they demanded in the prayer to their cross-complaint.

The plaintiff filed an answer to said cross-complaint denying in detail the allegations thereof, and alleging that whatever deterioration there might have been in said materials so furnished by it was due to the negligence of the defendants in the treatment and use of said material in their said building and in the course of construction thereof.

The cause went to trial before a jury upon the issues thus made up, and from the evidence educed at such trial the following facts appeared in relation to the inception and conduct of the negotiations between the parties with respect to the subject matter of this suit: The Tracy Brick & Art Stone Company was, in the latter part of the year 1913, a corporation engaged in the manufacture and sale of certain artificial stone work and ornamental moldings for use in the construction of buildings. This corporation at that time