227 F. 804 | 8th Cir. | 1915
The Strait Manufacturing Company was plaintiff below. It brought this action against the Crescent Milling Company to recover the purchase price of an engine. The contract • was in writing, and took the form of a proposal from the Manufacturing Company, and an acceptance by the Milling Company. It binds the plaintiff to supply and install in the defendant’s mill at Fairfax, Minn., a 300 indicated horse power horizontal tandem double acting gas engine, which engine is to operate the flouring mill of the purchaser, and the lighting plant of the village, and, at 150 revolutions per •minute, carry a load of 200 brake horse power, and a peak load 'of 264 horse power. The contract also contains numerous guaranties as to the amount of power which the engine will develop by the use Orf specified British thermal units of heat. While these qualities are sometimes spoken of as guaranties in the contract, they are by its express provision made conditions precedent to any liability on the part of tire purchaser to accept or pay for the engine. We quote from the contract the following language;
“In case said engine does not fulfill said test or satisfy said guaranties, said purchaser shall not be required to pay therefor, and said engine shall be forthwith removed by said corporation upon demand.”
“That at all times since the completion of said endurance test, the defendant has continuously retained and used said engine.”
So far as we can discover from the record this motion was never brought to the notice of the court, or any order made permitting the amendment. Evidence, however, was received at the trial, without objection, showing that defendant had continuously used the engine in its mill, without any notice other than the answer, of its dissatis fac
There are 121 assignments of error. We have examined them all, and are of the opinion that none of them are more meritorious than the ones to which we have already referred.
The judgment is affirmed.
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