Bakersfield & Ventura Railroad v. Fairbanks, Morse & Co.

JAMES, J.

Plaintiff purchasedfrom defendant in the year 1909 a motor car for use on its street railway. Upon being put to the use for which it was purchased the motor soon became out of order, a number of its parts gave way while it was being so operated, and plaintiff complained to defendant

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that the car was defective in material and workmanship and requested defendant to repair it. After some negotiation was had between the parties, plaintiff caused the repairs to be made upon the car and by this action sought to recover the sum of $841.55 paid out on that account. In its amended complaint the plaintiff first alleged that upon being notified of the defective condition of the car defendant attempted to repair it but failed, and that it then authorized plaintiff to purchase the necessary material and employ the necessary labor for the repair thereof so as to make the car conform to the purposes for which it was sold. It was then alleged: “That said plaintiff under and by authority of said defendant as hereinbefore stated, thereupon purchased material and employed skilled labor in an attempt to repair said car, engine and equipment thereof, all of which was done and performed in the county of Ventura, state of California, and which labor and material amounted to the sum of $841.55, which sum and amount defendant agreed to paj to plaintiff, but that he has not paid the same nor any part thereof, although often requested so to do, and that the said sum of $841.55 and the whole thereof is now due, owing and unpaid.” In a second count- contained in its complaint plaintiff alleged, after setting forth the circumstances of the sale of the motor car, that after it became in disrepair and its parts broken defendant was notified of the facts, whereupon defendant attempted to repair the car, but failed to put it in good condition, and that thereupon plaintiff purchased the necessary material and employed the necessary labor in an attempt to make the car suitable for the purposes for which it was sold, which labor and material amounted to the sum of $841.55, which sum was the reasonable value thereof. Allegations as to nonpayment and demand followed. In its answer defendant admitted that it had represented the car sold to have standard equipment and that it was good, sound, and substantial and of the best material and that the workmanship on the car and engine were of the highest and best mechanical construction. Upon trial being had testimony was introduced on behalf of plaintiff. A motion for judgment of nonsuit was denied, and, defendant offering no evidence, judgment in favor of plaintiff for the sum of eight hundred dollars was entered. Motion for new trial was thereafter made and de