Hendry v. Irvine

KERRIGAN, J.

On April 23, 1900, Charles Rapp and others, doing business under the firm name and style of Union Machine Company, entered into a contract with William Irvine, whereby they agreed to construct for him a double cylinder gasoline engine, and two metal tanks, to be completed and delivered at San Francisco on or before June 4, 1900. According to the terms of the contract Irvine paid $1,000 on account of the purchase price of the engine when the contract was entered into, and the balance of $550 was to be paid when the engine was set up on Irvine’s premises and had been in successful uninterrupted operation for the period of thirty consecutive days thereafter, or for so much of the thirty days as Irvine should desire to operate it. The engine was delivered and set .up; Irvine refused to pay the balance of the purchase price, and the claim of the Union Machine Company therefor was subsequently assigned to A. M. Hendry, who commenced this suit for its recovery. A second cause of action is set up in the complaint for goods sold and delivered and services rendered, amounting to the sum of $258.45. Defendant Irvine in his answer denied that such an engine as had been contracted for was ever furnished; and alleged that the engine delivered could not be made to run continuously or uninterruptedly for thirty days, or for any substantial length of time; that the engine and tanks were not delivered within the stipulated time, and that the pump connections referred to in the second cause of action were not furnished for him, nor on his order, but had been furnished to and for the order of a third party. As a counterclaim Irvine alleged damages for expenses incurred on account of alleged defects in the construction of the engine, and he also alleged that by reason of the delay in the delivery of the engine he was unable to irrigate his alfalfa crops, which died for want of water.

The action was tried without a jury, and judgment went in favor of plaintiff. The defendant made a motion for a new trial, which was denied. Thereafter William Irvine died, and Louis A. Irvine, the administrator of his estate, was substituted as defendant herein. An appeal was taken by William Irvine from the judgment, and by Louis A. Irvine, his administrator, from the order denying the motion for a new trial.

We do not feel required to restate the evidence, or even to summarize the many pages of testimony appearing in the transcript. We shall content ourselves with saying that while the evidence is conflicting, it is sufficient to support the findings of the trial court. There is ample evidence in the record to show that the engine was capable of doing exactly the character of work, and was of the design and horse-power, called for by the contract, and we therefore conclude that there is no merit in the contention of the appellant that the Union Machine Company failed to fulfill its contract as to the engine.

There is also evidence to support the finding of the court of due performance by the Union Machine Company of the conditions of its contract. Appellant contends that, as the engine was not delivered until thirty days after the time specified in the contract, this finding is error. The delay in the delivery of the engine (it having been accepted by Irvine) did not make the finding erroneous, unless Irvine was damaged by the delay. Here a slight digression is necessary. William Irvine desired to purchase a pump which had been invented by one Morton, who agreed with Irvine that the latter could arrange with some machinist to construct it for him without paying Morton any royalty therefor. An oral agreement was made by Irvine and the Union Machine Company, by the terms of which the machine company was to build the pump according to the Morton design. The appellant did not plead damages caused by any delay in furnishing the pump; the only damage pleaded is on account of the alleged defects in the engine. As the engine was useless for irrigating purposes without the pump, and as the engine (as shown by the evidence) was delivered before the pump, the delay in furnishing the engine was immaterial, and that de: lay did not cause the loss complained of. But, in any event, as the pump—which was built according to a model furnished by appellant, and for the success of which the machine company was not responsible—was, when installed, incapable of doing the work for which it was designed, it was the pump, and not the alleged delay in furnishing the engine, which caused the alleged damage.

Appellant insists that the court erred in refusing to allow him to show the expenses to which he was put in his efforts to operate the engine on crude oil; also the expenses incurred by him in making the engine efficient, etc. The court having found, upon sufficient evidence, that the engine conformed to the contract, any expenses incurred, or damages suffered by appellant, concerning the engine, would not be a charge against the respondent. The court committed no error in excluding the offered testimony.

It is needless to pursue the discussion further. All the matters urged by appellant for a reversal of the judgment and order depend upon the proposition advanced by him that the evidence is insufficient to support the findings; but a careful examination of the record shows, as we have already said, that the findings are amply supported by the evidence.

This brings us to the last point in the case. The judgment was against William Irvine in his lifetime. Since then, and since the entry of the order denying him a new trial, he died, and his administrator has been substituted in his place. Appellant suggests that if the judgment be affirmed, it should be changed so as to direct that it be paid “in due course of administration.” The judgment when affirmed will be paid, as far as the estate is concerned, in due course of administration, but as the judgment when affirmed will become final as of the date of entry, and as the suggested change if made might embarrass the respondent in proceeding against the sureties on the appeal bond, it would be improper for this court to make the modification suggested.

The judgment and order are affirmed.

Cooper, P. J., and Hall, J., concurred.