Charter Gas Engine Co. v. Kellam

79 A.D. 231 | N.Y. App. Div. | 1903

Smith, J.:

The trial court has apparently held that the only warranty contained in the plaintiff’s contract was a warranty that the engine was a thirty-five actual horse' power engine; and further held that if the contract be construed to contain a further warranty as to the qualities of the engine there is no proof sufficient to authorize the jury in holding that such further warranty was broken. The contract is contained practically in the letters of February twenty-third and twenty-sixth. Prior to the writing by the defendants of the letter of the twenty-third, .the plaintiff’s circular was before them, in which it had in substance represented the engine as a safe one, involving no danger, one that “ does not require an experienced man to set up and start or a licensed engineer to operate.” This letter stated that payment was to be made when the engine “ has proved to be what you recommend,” and stated that the order conditionally given by the Patch Company would be confirmed if the plaintiff would guarantee that the engine would “ drive 35 actual H. P. and work satisfactory in every respect as you recommend it to do.” In the letter of the twenty-sixth, this order, as-thus conditioned, seems to have been accepted. Otherwise the ' plaintiff would not have entered' it upon its books. The statement in the 2d paragraph of the letter of the specific warranty as to this engine giving thirty-five actual horse power in no way negatives an intention on the part of the plaintiff to give the full warranty which the defendants demanded. The specification of that particular warranty may well have been made to emphasize what was deemed by the parties the most important part of the contract ; or it may have been, made to describe more specifically that part of the warranty as was done by the clause “ each horse power being represented by 33,000 ft. lbs.” The statement of an express warranty may at times negative an implied warranty. The statement of a specific warranty will not limit, however, a general warranty demanded unless the intention to so limit be clearly expressed. Here the order conditioned upon a general warranty was in terms accepted. The defendants had represented themselves as entirely ignorant of gasoline engines and the purchase was presumptively made upon the representations made by the plaintiff in its letter and circulars, with the intention of inducing ’this particular purchase. It is no hardship on plaintiff to hold that these representations were made in good faith and were intended to be included in the warranty. The defendants endeavored to show that they relied upon these representations. This the court did not permit. Plaintiff’s counsel seeks to justify this ruling upon the ground that the defendants in their letter stated that they relied upon the judgment of the Patch Company. But that was simply, as stated in the letter, as to the amount of power necessary to run the machinery. We are of opinion, therefore, that the trial court erred when it held that the warranty was simply confined to a warranty of power, and was not a general warranty of the engine as recommended both in the letters and in the circulars of the plaintiff.

Assuming then that the plaintiffs, by their contract, guaranteed the engine as represented, we think the court improperly held that there was no proof for the jury as to the breach of that guaranty except upon the question of the power developed. That the explosion was not caused by any negligence on the part of the defendants’ servants was at least a question for the jury. The engineer who ran the engine has sworn in detail to the management of the engine. That management has not been criticised either in the evidence or in the briefs. Nor can the plaintiff well complain that scientific care had not been given to it after having represented that the engine did “ not require an experienced man to set up and start or a licensed engineer to operate ” it. The claim of the plaintiff that the explosion may have been caused by dynamite or some other foreign substance put maliciously under the engine has not the slightest support in the evidence, and is in fact negatived thereby as well as by every presumption of law. The defendants’ evidence is to the effect that there was no dynamite or other explosive substances around the shop which could have been used for that purpose, and there is hardly a suspicion of a motive shown for such an act. The defendants- were held by the trial court with unusual strictness in their endeavor to prove by witnesses who had at least some familiarity with the use of gasoline engines that the engine was improperly constructed. The witness Moore was, we think, qualified to testify as an expert. He swore in substance that the construction of the engine was such as to make it dangerous from the kind of explosion which happened. It is true that this evidence was by the court stricken out. We think the evidence was competent and that the exception to the ruling of the court was well taken. With that testimony in the case, at least, there would have been a question for the jury whether or not the engine was properly constructed. But in this case we can safely go further, and hold that where- a manufacturer of an engine warrants that it is safe, reliable, and that it Can be run without danger, that warranty is broken by an explosion even from an unknown cause. The ruling of the court below, that as matter of law a warranty that the engine was safe and could be operated without danger had not been broken, was error, for which the judgment must be reversed and a new trial granted.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellants to abide event.