182 A.D. 311 | N.Y. App. Div. | 1918
The verdict was directed on plaintiff’s motion without defendant having by like motion submitted the facts to the court; and, therefore, unless the evidence with respect to every question of fact upon which plaintiff’s right to recover depended was uncontroverted the recovery cannot be sustained.
This is an action on contract to recover the sum of $2,500 which defendant agreed to pay plaintiff for installing on its premises an apparatus with a guaranteed capacity for drying scourene, a soap manufactured by defendant in cakes weighing about eleven and one-half ounces which it becomes necessary to dry by removing about two ounces of moisture in order to render it marketable. The method formerly used by defendant took about three weeks to dry 60,000 cakes and consisted in allowing heated air to pass up through open trays or racks on which the cakes of scourene were spread. The plaintiff was engaged, among other things, in installing appliances for removing moisture by currents of air. It is to be inferred that it had no particular or standard appliances or equipment and that it contracted for such alterations in buildings and the installation therein of such appliances and equipment as "it deemed necessary to accomplish the desired result in each case by the application of the natural principle of having the moisture absorbed and removed by air blown against and around the objects from which the moisture was to be extracted. It had had no experience in endeavoring to remove moisture from any kind of soap. The latter part of November, 1913, the plaintiff’s sales manager opened negotiations with the general manager of defendant with a view to obtaining a contract for installing a drying equipment in its plant and expressed the opinion that plaintiff could install an equipment that would in thirty hours dry what it was taking three weeks to dry by the defendant’s system. Scourene would not dry rapidly in a temperature under 100 degrees Fahrenheit and would melt at a temperature 20 degrees higher and even less; and plaintiff was aware that it was necessary to maintain a uniform temperature a little below 110 degrees and that about two ounces of moisture was to be extracted from each cake. The plaintiff experimented with a few cakes in its
“ We would be very glad to send you a blue print of just what this layout would cover if you are ready to take up the matter.”
Defendant asked for the blue print and it was sent and returned approved, and on January 29, 1914, defendant formally accepted plaintiff’s proposition with a provision for a discount of five per cent for cash payment twenty days “ after acceptance,” and stated that it would “ at once proceed to put the rooms in condition.” Plaintiff replied the next day thanking defendant for the order and accepting the terms as modified and suggesting that the partitions be removed leaving the kiln one large room instead of as then four small ones. This suggestion was complied with and plaintiff proceeded to install the drying equipment consisting of a fan or blower operated by an electric motor to draw the air through the wall of the building into the drying room and heaters to
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Clarke, P. J., Dowling, Page and Shearn, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appéllant to abide event.