Royal Saulpaugh v. Chisholm-Ryder Co.

Appeal from an order of a Special Term of the Supreme Court, Albany County. Defendant leased an agricultural machine to plaintiffs described as a “mechanical snap bean harvester”. The contract of lease contained a warranty that the machine was “ able to operate in a mechanically satisfactory manner ”. In the cause of action based on breach which defendant moved to dismiss on the ground of insufficiency, it is pleaded that the machine leased to plaintiffs did not operate in a mechanically satisfactory manner, but broke and damaged the beans harvested by it ”. The portion of the allegation stating that the machine did not operate in a mechanically satisfactory manner is a sufficient pleading of a conclusion of fact to sustain a breach of an express warranty. The words “ but broke ” are evidentiary and perhaps surplusage, and do not negate or weaken the sufficiency of the statement of breach in the words immediately preceding. The words “and damaged the beans harvested by it” are statements of damage and not of breach. They do not imply that defendant agreed to provide a machine that would not damage beans; but plead rather a mechanically unsatisfactory performance of the machine had this result. We think the Special Term was right in denying the motion to dismiss. Order unanimously affirmed, with $10 costs. Present —Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.