Spaulding v. Dow

YAN FLEET, J. Action for breach of an alleged warranty of the capacity of a pump manufactured and sold by defendant to plaintiff. The material averments of the complaint are that the pump was sold and delivered to plaintiff on July 18, 1887, at the city of San Francisco, with the understanding by defendant that it was for use by plaintiff as a vacuum pump in the manufacture of sugar in the Hawaiian Islands; that as an inducement to plaintiff to purchase, and before the purchase was made, defendant represented that the pump was “fully equal” to a Blake vacuum pump (of a certain designated capacity), and gave plaintiff a written warranty guaranteeing such capacity. That plaintiff, relying upon such representations and warranty, purchased and paid for the pump, had it shipped to the Hawaiian Islands, and there tried in good faith to use it for the intended purpose; but that the defendant’s representations were false; that the pump was not as represented and guaranteed, but was and is useless for the purposes for which it was purchased; that by reason of the premises plaintiff suffered damage, for which judgment is asked.

The answer sets up that the pump was constructed in pursuance of an offer or proposal theretofore made by defendant and accepted by plaintiff, wherein the dimensions and character of the pump were particularly specified, and in accordance with which the pump was built by plaintiff’s express directions and delivered to him on July 18, 1887; denies making the representations as al-ledged by plaintiff, and sets out the representations that were made; denies that defendant gave any written warranty prior to the purchase or in consideration thereof, but avers that the alleged written warranty was presented to him by plaintiff and signed by him long after the purchase and delivery of the pump, was without consideration, did not express the capacity of said pump, as defendant had represented it or was willing to warrant it, but that it was inadvertently signed by defendant; denies that the pump was not of the capacity as represented, but al[426]leges that it was in all respects according to the contract and perfect in all particulars.

In a counterclaim defendant sought to recover the amount of certain expenditures made by him in sending an agent to examine and report upon the pump, under an alleged agreement with plaintiff that if the pump was found to be as represented by defendant, plaintiff would repay the expense of such agent, it being alleged that the result of the examination was to show that the pump was fully up to the representations of defendant.