Bancroft v. San Francisco Tool Co.

GAROUTTE, J. Plaintiff brings this action to recover damages arising from a defective elevator furnished him by defendant. He was nonsuited, and now appeals from an order denying his motion for a new trial. It is claimed on his part that the contract under which the elevator was sold and delivered was a written contract. This contention is denied, but, owing to the views we entertain upon other questions involved in the litigation, we leave the issue open, a decision of it not being necessary to the final disposition of the case.

The elevator furnished plaintiff by defendant was not suitable for the purpose for which it was to be "used, in this, that the drum thereof over which the cables passed was but fifteen inches in diameter, when it should have been at least thirty inches. The evidence discloses,that by reason of the smallness of this drum the elevator fell, many persons were injured, and great damage was entailed upon plaintiff thereby.

Plaintiff’s cause of action is based upon a claim of breach of warranty by defendant, and this claim takes a double aspect: 1. An express warranty in the contract that the elevator was suitable for the purposes for which it was furnished; and 2. An implied warranty given by section 1770 of the Civil Code, wherein it is provided: “One who manufactures an article, under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose.” If it be determined that no express warranty of the suitableness of this machine is found in the contract, then we are brought to a consideration of the implied warranty declared in certain cases to exist by the foregoing section of the code.

We pass to an examination of the contract. Plaintiff desired three elevators for a new building he was then erecting, and [230]defendant, being engaged in the manufacture of elevators, made a proposition to him in writing to this effect:

“A. L. Bancroft & Co., City: We will furnish three hydraulic elevators as follows, and as per plan submitted with this specification.” Complete specifications in detail as. to the-manner of erecting the elevators, and the material to be used therein, accompanied the proposition; also a plan of the elevators was attached thereto. The proposition also-stated: “We will furnish the work heretofore mentioned in a first-class, workmanlike manner, for the sum of five thousand (5,000) dollars, guaranteeing these elevators for one year; that is to say, we will keep them in first-class order for one year free of charge to you.” A change in the manner and time of payment of the contract price was agreed upon, the proposition thereupon accepted, and thereafter in due course the elevators were furnished to plaintiff and the purchase price paid. The passenger elevator (two being freight elevators) was the one having a fifteen-inch drum, and the falling of which caused the damage forming the basis of this action. The plan of the passenger elevator showed the drum to be fifteen inches in diameter. Hence, it is apparent that the defect in the elevator was a defect in the plan or design, and not a defect in construction. In other words the drum agreed to be furnished by defendant was furnished, but it was not suitable for the purpose to which it was to be applied.