66 P. 605 | Or. | 1901
delivered the opinion of the court.
The plaintiff is engaged at Indianapolis, Indiana, in the business of manufacturing and selling combined air pumps, circulating pumps, and condensers, such as are used in steamboats for condensing the exhaust steam. The condenser consists of a metal'cylinder, containing small tubes, usually five eighths or three quarters of an inch in diameter, through which cold water is passed by means of the circulating pump, the steam which is let into the spaces inside the condenser and surrounding the tubes being thereby condensed into water. The air pumps are used to supply the interior of the condenser with air, by means of which the water is returned to the boiler. The capacity of a condenser is determined by the square feet of tube or cooling surface. The defendant is an Oregon corporation, engaged in manufacturing, furnishing, and supplying machinery, pumps) engines, boilers, and other appliances for use in steamboats, mills, etc. On November 15, 1897, it wrote to the plaintiff, stating, in substance, that it had had several inquiries for combined air pumps, circulating pumps, and condensers, giving dimensions of engines, and asking plaintiff to give full data, “either number and length of tubes or square feet of cooling surface, diameter and stroke of engines and pumps,” etc. On November 27 the plaintiff answered, saying there was not sufficient data in defendant’s letter from which to calculate the steam consumption and size of condenser required, but quoted the following prices, f. o. b. Indianapolis, for pumps and condensers:
On January 24,1898, the defendant ordered of plaintiff, referring to prices and dimensions given in its letter of November
The complaint is in the usual form in actions for goods sold and delivered, and the controversy arises upon the counterclaim of the defendant. The answer sets up, in substance: That plaintiff offered and agreed to sell and deliver to defendant, f. o. b. Indianapolis, Indiana, combined steam, air, and circulating pumps and condensers, of the following descrip
The plaintiff requested the. court to instruct the jury that, “if plaintiff agreed to sell defendant a certain kind of a condenser, and delivered to defendant a different kind of a condenser, which is not accepted by defendant as performance of
If defendant had contracted to furnish condensers of the dimensions ordered from the plaintiff, and was unable to fulfill its contract because of plaintiff’s default, or, if plaintiff had known that defendant intended them for use in the- Juneau and Maggie, and had agreed to furnish them with that understanding, a different question from the one now before us would have been presented, and a different rule of damages would, perhaps, have been applicable. But here defendant’s collateral contracts were not for condensers of the dimensions ordered, and plaintiff did not know that it desired them for any particular use. We are of the opinion, therefore, that the rule sought to be invoked by the defendant, that where machinery is ordered for a special purpose, and the seller has knowledge of that fact, but fails to comply with the order, the ven
The judgment must therefore be reversed, and a new trial ordered. Reversed.