Harron, Rickard & McCone v. Sisk

BURNETT, J.

The action was brought to recover the balance due for the sale of what was known as a forty-horse power Foos type special horizontal engine. The agreed price was $1,642.50, of which $400 was paid at the time of the purchase. The defense, set forth in varying phraseology, is based upon the claim of a breach of warranty. The action was tried before a jury and a general verdict rendered for defendant in the sum of $400. The appeal is from the judgment and the order denying a motion for a Hew trial.

The first contention of appellant worthy of notice is that there was no implied warranty that the engine would do the work required of it. This proposition of law is urged by reason of the fact that the purchase was of a certain specified, well-known, staple article, from a seller who was not the manufacturer. There is a clear distinction between such transaction and the ease where the purchaser relies upon the judgment of the seller for the selection or manufacture of an article suitable and adequate for a certain purpose. There

[630]

are many decisions upon the subject, among which is the carefully considered opinion of the supreme court of Kansas in the case of

Ehrsam

v.

Brown,

76 Kan. 206, [15 L. R. A., N. S., 877, 91 Pac. 181], which may be consulted with profit. This diversity is also recognized by the provisions of our Civil Code found in section 1763 et seq.

This feature of the discussion, however, may be dismissed, as respondent claims the breach of an express warranty contained in the following language of the contract of sale: ‘ ‘ Guarantee: All Poos Engines are guaranteed to deliver their rated horse power at sea-level.” Respondent’s position is that the engine fell far short of this requirement, and that hence there was a substantial failure of consideration as set forth for a defense in the answer to the complaint. This is the occasion for the assertion of appellant, admittedly sound, that “defendant can recover, if at all, only upon showing some defect in the engine in question, which constitutes a breach of such warranty.” And herein it is declared that “there is no evidence before the court that the engine in question was not what it claimed to be and did not actually deliver forty-horse power. The sole defect in the engine complained of is directed to the clutch.” As to this we do not think it can be maintained that there is no substantial evidence from which a reasonable inference can be drawn that the engine was materially defective. It may be admitted that the evidence as to the infirmity of the clutch is more persuasive than that in reference to the engine proper, but in consideration of all the circumstances as we must view them, it is believed that the jury were warranted in the conclusion that there was a breach of appellant’s guaranty. In this connection attention is called by respondent to the following facts disclosed by the record: In 1908 defendant used the same separator to thresh grain, and the power was furnished by a twenty-five horse-power gasoline engine, which furnished all the power that was needed. The work done then was the same kind of work and under similar conditions as that attempted in 1909 with the use of the engine in question. After this “Poos” engine was received defendant employed a crew of men to carry on threshing operations. He did all in his power to have the engine furnish the necessary horse-power to operate his separator. He tried for twelve days to make