Boothe v. Squaw Springs Water Co.

Contract for Pumping Outfit—Insufficiency—Agreed Modification —Substituted Pump-Head—Increased Cost not Recoverable— Support of Finding.—Where a pumping outfit, furnished under contract, was found insufficient for the service, and it was agreed that the outfit should not be considered as complete until a different and stronger pump-head should be furnished as a substitute for the first, and that the use of the plant in its insufficient condition should not be considered an acceptance, in the absence of any express contract of defendant to pay for the substituted pump-head, and of any evidence from wMeh such contract can be implied, a finding that the new pump-head was by the mutual agreement and understanding of plaintiff and defendant to be furnished without additional cost to the defendant is sufficiently sustained.

Id.—Performance of Contract—Liability for Price—Findings.—-In view of the agreed modification of the original contract, and plaintiff’s substantial compliance with the contract as modified, and that the pumping outfit, as changed, did the work called for, defendant cannot escape liability to pay the original contract price on the ground that the original contract was not performed as originally agreed; and the defendant is not injured by a finding that “plaintiff duly performed all the conditions on his part to be performed under the terms of the contract,” nor by the apparent inconsistency with the finding that a substituted pump-head of a different pattern was agreed upon, without additional cost to defendant.

Id.—Cross-Complaint—Damage for Delay—Exclusion of Evidence. —Where the first pump-head and machinery were completed according to the contract, so far as the workmanship and pattern were concerned, but the pump proved too weak, and it was agreed that a new and stronger pump-head of a different pattern should be substituted, and the delay in making such substitution was not unreasonable, and the court was justified in finding that there was no unreasonable or unnecessary delay, the defendant cannot recover any damages for delay under a cross-complaint therefor, and was not injured by the exclusion of evidence upon that subject.