Doak Gas Engine Co. v. Fraser

SHAW, J.

The appeal here presented was taken from the judgment within sixty days after its entry. The evidence is set forth in a bill of exceptions.

Plaintiff's complaint was in two counts. The first count was upon a promissory note, executed by defendant to plaintiff, on September 2, 1910, payable one year after date, for one thousand seven hundred and fifty dollars. The second

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count was for goods sold and labor done by plaintiff, to and for the defendant, of the alleged value of $520.75.

Upon the second count the court allowed the plaintiff only $109.20. No objection is here made to that part of the judgment.

The execution and nonpayment of the note were admitted in the answer. The main defense was upon a counterclaim. The note was given in consideration of the balance due upon a contract for the purchase and installation of a seventy-five horsepower Doak marine gas engine, with propeller and shaft, sold by plaintiff to the defendant, to be installed by the plaintiff on the defendant’s freight launch "Skimmer.” The counterclaim alleged that it was a part of the contract of sale that the engine, propeller, and shaft should be suitable for the purpose of propelling the launch and that they were to be installed by the plaintiff in a workmanlike manner, so that they would propel said launch; that the same were installed in an unskillful manner so as to weigh down the launch, reduce her utility and make her navigation more dangerous and her operation unsafe, except in unusually calm weather, and in such a manner that they were not capable of propelling the launch in her work so that she could make regular runs, whereby, it is alleged, the defendant was damaged in the sum of one thousand five hundred dollars.

The court found that the allegations of the counterclaim, in regard to the unskillful installation of the engine, propeller, and shaft and the alleged consequences thereof, were untrue.

It is not contended that the evidence was insufficient to support these findings. The principal claim of the defendant is that the court below did not allow him to give evidence to show the defective condition of the engine.