De Laval Dairy Supply Co. v. Talbott

CHIPMAN, P. J.

This is an action upon two certain promissory notes, executed by defendant to plaintiff, both of which were dated June 30, 1914, one for two hundred dollars, due December 15,1914, and the other for $175, due March 15, 1915, and both recited that they were given on account of the purchase price of a certain twenty horse-power Stickney gas engine sold and delivered by plaintiff to defendant. The notes also provided for reasonable attorneys’ fees in ease of suit brought to enforce collection. Included in the action was a claim for goods furnished amounting to $8.48.

In his answer defendant denied that said notes were made ■on June 30, 1914, but alleged that they were executed about October 18, 1914; admitted nonpayment. For a further defense, “and by way of counterclaim,” defendant alleged that in Slay, 1913, he contracted with one Lloyd Collar, agent of plaintiff, to purchase a twenty horse-power Stickney gas engine for the sum of $750; “that before the making of said sale the said defendant caused the said agent of plaintiff to visit the mine where defendant was working and where the said engine was to be installed”; that defendant then and there informed said agent of all the facts surrounding the

[41]

situation of said work and that all of these facts became known to plaintiff, who thereupon “agreed that it would furnish to defendant a Stiekney gas engine that would develop twenty horse-power and would not hammer, and the said plaintiff expressly warranted to said defendant that plaintiff would furnish and install such engine, and he expressly warranted that the same would work in said altitude and that the same would develop sufficient power to crush said ores and that the same would run on a small amount of oil, viz., one-half pint per horse-power per hour, all of which this defendant relied upon.” It is then alleged that said engine would not and did not do the work that plaintiff warranted it would do, setting forth in the answer with much particularity wherein the said engine failed to meet said warranty and mentioning the several defective parts of said engine and its failure to develop more than fourteen horse-power; that, on many occasions before the bringing of this suit, defendant requested plaintiff “to fix the said engine so that it would work” and to make good its warranty, hut plaintiff neglected and refused to do so; that in January, February, and June, 1914, defendant offered to return the said engine to plaintiff; that, “under the first agreement with plaintiff herein, he executed to the plaintiff two promissory notes on July 30, 1913, each for the sum of $375, and that the two hundred dollar note and the $175 note set out in plaintiff’s complaint were given in October, 1914, for the second $375 note that defendant had executed to plaintiff in 1913.” It is then alleged that defendant paid the first $375 note and interest; that he paid out for freight on said engine $86.38, and hauling the same to the defendant’s mine, $45. Defendant also claims damages for various amounts, namely, $53 for storage of said engine; for lost time, $816; for the purchase and operating of a substitute engine and for certain necessary work, $1,850. These last two items went out of the answer on demurrer.