Uvada Consolidated Mines Co. v. Western Gas Engine Corp.

KERRIGAN, J.

This is an appeal by plaintiff from a judgment in favor of defendants in an action for damages for the breach of a contract for the sale of personal property.

In the month of November, 1916, the plaintiff, through its then president, C. IT. Putnam, entered into a contract with the defendants for the purchase of a certain four-cylinder engine, with equipment, for the sum of $4,000, one-third of which was paid upon the execution of the contract, the balance to become due upon presentation of shipping documents. Under the terms of the contract the plaintiff was to furnish the defendants with information as to the size of the pulleys required for the proper operation of the engine, and the size of the crank-shaft necessary to properly operate the pulley. The purchaser was also, quoting the language of the instrument, “to furnish cement and you are to build foundations at place and in position designated by you, according to plans furnished by us. You are to furnish sand, gravel, rock, water and all other foundation material; you are to do all teaming and haul all supplies to site of installation. You are to furnish all neces

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sary help; you are to pay all freight and transportation charges from factory.”

At the time of the execution of this agreement C. H. Putnam produced a telegraphic money order for $1,600, made out to his order and which had been wired to him by the plaintiff. He delivered this order to the defendants, out of which they took the sum of $1,333.33, the amount of said initial payment, and gave to Putnam a check for $266.67.

In the month of December, 1916, W. D. Lea, the sales manager of the defendants, requested Putnam to furnish the details required by the contract so that the crank-shaft and pulley might be ordered and the engine prepared for shipment, pointing out to Putnam that the contract provided a specific date of shipment. In reply Putnam informed- Lea that his company was not prepared to proceed with the financial requirements of the contract, and that he would release the defendants from the delivery date in the contract. Accordingly, upon request he wrote a letter to the defendants, part of which was as follows: 1 ‘Owing to the necessity of rearranging our plans of installation you will kindly hold the matter in abeyance pending the time we can give you further instructions.” Thereafter Putnam repeatedly spoke to Lea in regard to a return of the deposit, saying that the company “needed the money.” 'On January 19, 1917, the plaintiff sent a telegram to the defendants, signed by three of its officers, requesting -a withdrawal of $1,000 of the first payment for temporary use because “funds are low at present and we need the money.” To these requests the defendants refused to accede, but later Putnam called upon them, and as the result of a personal interview secured from Lea a check for $1,200. At that time, it seems, there was some trouble among the stockholders and directors of the plaintiff; in any event Putnam represented that he was unable to procure a properly authorized note at that time, but would do so later if the defendants would take his personal note in the meantime. Thereupon the defendants wrote and delivered to Putnam a letter to the effect that the payment of $1,200 was a refund of the first payment on said engine less approximately ten per cent; and after stating'that if the maker at the due date of the note should