61 N.W. 151 | N.D. | 1894
The controlling facts involved in this action are as follows: At and prior to April 17, 1889, defendant was operating a gas and electric plant at the City of Fargo, and had in use in its plant a certain horizontal tubular steam boiler, and, being desirous of adding to the power of its plant, defendant entered into negotiations with the plaintiff for the purchase of a boiler. Considerable correspondence was had between the parties, resulting in a contract of sale. The correspondence was between the secretary of defendant, one Seth Newman, and one C. D. Dennis, who was plaintiff’s representative, and the sale contract was signed by them in behalf of the parties. All of the contract of sale which we deem important in our discussion of the case is as follows: “Fargo, D. T. April 17, 1889. The Fargo Gas & Electric Company, Fargo, D. T. — Gentlemen: We propose to furnish you, f. o. b. cars at New York, N. Y., one Hazelton steam boiler of 215 horse power. * * * The horse power of this boiler is based upon the evaporation of thirty pounds of water per horse power from 212 Fahrenheit, with ordinary firing, and we hereby guaranty that the boiler in regular practice, properly managed, shall evaporate ten pounds of water from one pound of good coal at 212 Fahrenheit, which we guaranty to be a saving of at least twenty per cent, in fuel over any horizontal tubular boiler That the boiler shall be well made, of good material, and operate
The record shows that the principal contention at the trial turned
The record has been sufficiently reviewed to explain the essential nature of the controversy which prevailed at the trial, and which, in one form or another, came up for discussion at almost every stage of the trial. It abundantly appears in the rulings of the learned trial court that the construction placed upon the warranty feature of the sale contract by the counsel for the plaintiff was adopted in its entirety by the court below; and that all of its rulings upon the admission of testimony and upon requests for
As we have determined to grant a new trial, at which the pleadings may be amended so as to simplify the issues, we do not consider it necessary to rule upon the error assigned upon the
The judgment will be reversed, and a new trial granted.