Aldrich v. Rankin

MUSSELL, J. On August 28, 1946, plaintiffs and defendant entered into a conditional sales contract providing for the sale by plaintiffs to defendant of a “Buda” engine, carburetor and pump. The total price of this equipment was stated in the contract to be the sum of $9,967.27, and while the price of the engine was not therein separately stated, the evidence is that it was $4,220.67, plus sales tax amounting to $105.52. Defendant paid the specified down payment of $3,000 but did not pay the balance which was due and payable on January 1, 1947. On January 15, 1948, plaintiffs filed the instant action for the recovery of the engine or, in the alternative, for damages in the sum of $4,600, and other relief. Defendant answered and cross-complained and alleged, among other things, that she had refused to accept the engine and rescinded the contract; that the engine delivered by plaintiffs failed to work properly, or at all; that it would not furnish water, and that plaintiffs had failed either to remedy or replace it, although they had repeatedly promised to do so. Defendant prayed for the return to her of the $3,000 down payment and for other relief.

The cause was tried before the court without a jury and on May 23, 1949, judgment was entered for the recovery of ‘‘a certain Buda engine . . .” or “in the event delivery cannot be had, the sum of $4,325.84”, $300 attorneys’ fees and costs. It was further adjudged that the cross-complainant be denied relief on the cross-complaint.

On July 26, 1949, the court amended its findings of fact and judgment to provide “that the reasonable value of the engine be declared to be the sum of $2,100, and judgment shall be that the plaintiffs recover the property, or in case the same cannot be had, then and in that event to recover the sum of $2,100, and that the findings of fact and judgment shall in all other respects remain the same.”

The defendant appeals from the judgment of May 23d and from the judgment as amended on July 26th.

The trial court found, in effect, that the engine was fit and proper and suited to the purposes for which it was purchased and that all of the allegations in the pleadings to the contrary [486]were untrue. The findings in this respect are attacked by defendant on the ground of the insufficiency of the evidence to support them.

There is a conflict in the evidence as to the fitness and suitability of the engine. Defendant testified that it operated satisfactorily for a few hours after it was first installed; that the tubing then became covered with frost, causing the engine to stop; that she was able to start it again by pouring hot water on the tubing but the engine did not run continuously without defrosting; that the continuous trouble was due to the “Holzapfel” carburetor furnished with the equipment and that plaintiffs failed to furnish an “Ensign” carburetor as promised.