Lane Manufacturing Co. v. Raymond Granite Co.

NOURSE, P. J.

Plaintiff sued on an express contract for the sale of certain machinery parts for use upon a rotary stone saw and upon an implied contract for freight paid for parts shipped by defendant to plaintiff. The defendant had judgment.

The complaint alleged: “That said machinery or parts of machinery above mentioned were ordered by the defendant for the purpose of replacing the trucks, boxes, glands and axles at that time in use upon the said Parker rotary stone saw. The said defendant agreed to pay for the said machinery so ordered at the time that the old parts which were to be replaced' as aforesaid had been repaired and placed back on said Parker rotary stone saw by the said defendant and did represent that said replacement of said parts would be within a period of one (1) year.”

On August 18, 1925, these parts were shipped to defendant but were not used until some time in the year 1928. On May 14, 1928, the defendant shipped the old parts to plaintiff, freight charges collect. The plaintiff paid the freight and this amount, added to the invoice price of the new parts, fixes the sum sued for.

In its answer the defendant denied that it had represented to plaintiff that the old parts would be replaced by the new within one year or at any time other than as became necessary in the due course of its business. By way of affirmative defense the defendant pleaded that, prior to the twenty-first day of July, 1925, defendant agreed to purchase from The Parker Rotary Stone Saw Company a certain stone saw equipped with certain parts all according to specified dimensions; that the saw company contracted with the plaintiff for the manufacture of such parts according to such specifications; that the plaintiff manufactured and delivered to defendant such parts; but that, through the carelessness of plaintiff, the parts so manufactured and delivered were defective and not according to the specifications; that

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thereafter the defendant installed the saw and for the first time discovered that the parts were not in accordance with the agreement; that, in reliance upon its said contract, the defendant made agreements to deliver a large quantity of cut granite and was compelled to use the defective parts; that defendant complained to the plaintiff of the defective condition of the parts delivered and that the plaintiff thereupon agreed to furnish new parts on the condition that the defendant would return the old parts to plaintiff for alteration to conform to the specifications, and that defendant would pay for the new parts when the old or original ones had been returned to defendant in proper condition. It was then alleged that the old parts were returned to the plaintiff in accordance with this agreement, that the new parts were installed on the saw, but that they were at no time replaced by the old parts. The charge for freight is answered by the allegation that the shipment was made to the plaintiff at its special request.