Smith-Booth-Usher Co. v. Los Angeles Ice & Cold Storage Co.

[137]

HENSHAW, J.

Plaintiff sold a pump and pumping apparatus to defendant under circumstances hereinafter related. It was paid a part of the purchase price, the pump was installed, and failed to give good service. Defendant so notified plaintiff, demanded a return of its money, and requested a removal of the pump, in order that it might install one which would perform the desired service. Thereupon plaintiff brought this action to recover the unpaid part of the purchase price and defendant answered, averring that it purchased the pump under a warranty that it would deliver five hundred gallons of water per minute, and that the pump in fact would not deliver to exceed one hundred gallons per minute. It counterclaimed, seeking a return of the amount of the partial payment which it had made on the purchase price of the pump and compensation for expenditures to which it had been put in its efforts to overcome the imperfections of the pump. The court found that the agreement between the parties was that the plaintiff would deliver a pump “which would furnish to said defendant not less than five hundred gallons of water per minute”; that the pump was unable to furnish more than one hundred gallons per minute; that by its written contract plaintiff warranted to the defendant that the pump would be reasonably fit for the particular purpose for which it was ordered, “but that the pump manufactured or caused to be manufactured by plaintiff and by plaintiff delivered to defendant was not reasonably fit for said purpose”; that in executing the contract defendant relied upon the warranty of fitness; that plaintiff warranted that the pump which it would manufacture and deliver “would have a capacity of delivering to defendant at least five hundred gallons of water per minute from a well of defendant located in accordance with the specifications in said written contract contained.” Following these findings judgment was given against plaintiff and in favor of defendant on its counterclaim.

The question advanced by appellant for determination is two-fold. First, did it give such a warranty as the court found, and, second, if it did, did the pump which it furnished fail to conform to the requirements of the warranty

1

The facts are that defendant in its business used water from several wells upon its premises. In the pumping of these wells it had been using air-lift pumps. It was represented to