Gottlieb v. Tait's Incorporated

THE COURT.

An appeal by the defendant corporation from a judgment entered for the plaintiffs in an action, to recover the balance of the agreed price pf a garbage incinerator and chimney purchased by the defendant and erected at its place of business in Oakland, California, together with the costs of erecting a second chimney in connection with the same incinerator.

On April 22, 1927, the plaintiffs agreed in writing to install the incinerator mentioned for $1,080, and in connection therewith to erect a 12-ineh brick chimney, lined with firebrick for $500, a total cost of $1,580, which the defendant agreed to pay in installments as follows: $500 upon completion and $100 per month thereafter until paid.

According to the plaintiffs the conditions found to exist at defendant’s place of business after the contract was made were thought to render impracticable the erection of a chimney of the kind or at the place therein previously contemplated by the parties. It was therefore agreed that the location of the incinerator should be changed, and a chimney of a different type from that described in the contract erected, which was accordingly done. The chimney erected was of brick from the basement to the first floor of the build

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ing, and from thence to the roof a patent chimney with asbestos filling and terra cotta lining was used, from the top of which projected a 12-inch galvanized pipe extension, this chimney being some sixty feet higher than the one originally planned. Some time during the following July a fire, which caused considerable damage, originated from the chimney at a point on the third floor of the building. It was then determined that a new chimney should be erected. According to the plaintiffs they agreed, in consideration of the present payment of the whole of the balance unpaid under the contract and the cost of the new chimney, to erect the same; and the defendant having accepted this proposal, the work was accordingly done. The defendant claimed that the old chimney was defective and that the new one was to have been erected free of cost to it; that the.plaintiffs warranted the incinerator and the chimney originally erected to be properly constructed and fit for burning the garbage and refuse from defendant’s restaurant, but that the same were wholly unfit for such use; that defects in the first chimney caused the fire, and that the incinerator, due to faulty construction, finally collapsed. Defendant sought to recover the amount paid thereon, together with damages for the alleged breach of warranty.