Judges： Seabury
Filed Date： 11/10/1911
Status： Precedential
Modified Date： 11/12/2024
This action was brought to recover $163, under a contract to furnish and install a pumping outfit at the defendant’s residence. The terms of the contract are expressed in a letter of the plaintiff to the defendant, which, so far as it is material, provides as follows:
“To furnish 1 outfit #140, 2 H. P. Fairbanks-Morse Jaek-of-all-Trades gasoline engine, with walking beam, complete as per page 26 of our catalogue No. SO D; price, one hundred and sixty-three ($163.00)- dollars. The above price includes the installation of the engine, also a new pump head; it being understood that we are to furnish all the necessary labor and material for doing the above at your place at Port Washington, L. I. This outfit will give you in the neighborhood of twelve gallons per minute.’’
It was proved that the “outfit” was installed, and that it did not supply the defendant with 12 gallons of water per minute when in operation. Upon this proof the court below awarded judgment for the defendant.
There was no satisfactory evidence as to the capacity of the well, and the evidence which was offered on this subject indicated that the reason why the required amount of water was not supplied was because of the condition of the well. Under the terms of the contract the plaintiff did not warrant the capacity of the defendant’s well. The plaintiff was under no obligation to test the well, and the fact that it sent an agent to the defendant’s premises before it installed the engine does not justify the inference that the agent was engaged in testing the capacity of the well. In order to establish that the plaintiff was guilty of a breach of the contract, it was necessary for the defendant to prove that the engine was not as warranted. In the absence of evidence as to the capacity of the well, the mere fact that the defendant did not get 12 gallons per minute was insufficient to establish a breach of contract by the plaintiff.
Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.