Hendry v. Irvine
Before: Kerrigan
Synopsis
Action for Price of Engine—Defense and Counterclaim—Support of Findings—Fulfillment of Contract.—In an action upon a contract made by a machine company to construct and set up a gasoline engine for the defendant, to recover the balance of the purchase price thereof, in which defendant set up the faulty construction of the engine, and counterclaimed damages for alleged expenses incurred and paid on account of defects in its construction, and for delay in its delivery,—held, that though the evidence was conflicting, there was sufficient evidence for plaintiff to support the findings that the engine was constructed according to contract, and was capable of doing exactly the work called for by it, that the contract was fulfilled and its conditions performed by the machine company, and that no damage resulted to the defendant from any delay in the delivery and setting up of the engine.
Id.—Delay and Damage Caused by Faulty Pump Ordered by Defendant of a Specific Model—Construction of Engine not BeSPONSible.—Where the alleged delay and damages were caused wholly by the construction of a faulty pump intended to be used for irrigation of defendant’s land, in connection with the engine, which pump was ordered to be constructed on a special model furnished by the defendant, and for the success of which the macMne company was not responsible, and no damages were claimed for delay in its construction, the defendant, and not the plaintiff, is responsible for any resulting damage caused by such delay, and by the incapability of the pump, when installed, of doing the work for which it was designed.
Id.—Evidence—Expenses Incurred upon Engine.—The court did not err in excluding evidence offered by the defendant to show expenses incurred by him, in efforts to operate the engine on crude oil, and in attempting to make it more efficient. Such expense would not be a charge upon the machine company which had complied with its contract in furnishing the gasoline engine as ordered.
Id.—Death of Appellant—Substitution of Administrator—Affirmance—Claim Against Estate—Responsibility of Sureties—■ Judgment not Modified.—When the defendant died pending Ms appeal, and Ms administrator was substituted, though the effect of affirmance would be to make any residue of respondent’s claim payable out of the estate, yet as the judgment upon affirmance becomes final as of the date of the entry, and the sureties on the appeal bond are responsible to the respondent, it would be improper to modify the judgment so as to make the whole of respondent’s claim payable out of the estate.
KERRIGAN, J.
On April 23, 1900, Charles Rapp and others, doing business under the firm name and style of Union Machine Company, entered into a contract with William Irvine, whereby they agreed to construct for him a double cylinder gasoline engine, and two metal tanks, to be completed and delivered at San Francisco on or before June 4, 1900. According to the terms of the contract Irvine paid $1,000 on account of the purchase price of the engine when the contract was entered into, and the balance of $550 was to be paid when the engine was set up on Irvine’s premises and had been in successful uninterrupted operation for the period of thirty consecutive days thereafter, or for so much of the thirty days as Irvine should desire to operate it. The
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engine was delivered and set .up; Irvine refused to pay the balance of the purchase price, and the claim of the Union Machine Company therefor was subsequently assigned to A. M. Hendry, who commenced this suit for its recovery. A second cause of action is set up in the complaint for goods sold and delivered and services rendered, amounting to the sum of $258.45. Defendant Irvine in his answer denied that such an engine as had been contracted for was ever furnished; and alleged that the engine delivered could not be made to run continuously or uninterruptedly for thirty days, or for any substantial length of time; that the engine and tanks were not delivered within the stipulated time, and that the pump connections referred to in the second cause of action were not furnished for him, nor on his order, but had been furnished to and for the order of a third party. As a counterclaim Irvine alleged damages for expenses incurred on account of alleged defects in the construction of the engine, and he also alleged that by reason of the delay in the delivery of the engine he was unable to irrigate his alfalfa crops, which died for want of water.
The action was tried without a jury, and judgment went in favor of plaintiff. The defendant made a motion for a new trial, which was denied. Thereafter William Irvine died, and Louis A. Irvine, the administrator of his estate, was substituted as defendant herein. An appeal was taken by William Irvine from the judgment, and by Louis A. Irvine, his administrator, from the order denying the motion for a new trial.
We do not feel required to restate the evidence, or even to summarize the many pages of testimony appearing in the transcript. We shall content ourselves with saying that while the evidence is conflicting, it is sufficient to support the findings of the trial court. There is ample evidence in the record to show that the engine was capable of doing exactly the character of work, and was of the design and horse-power, called for by the contract, and we therefore conclude that there is no merit in the contention of the appellant that the Union Machine Company failed to fulfill its contract as to the engine.
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