50 Ill. App. 262 | Ill. App. Ct. | 1893
Opinion of the Court,
The appellee, under a written proposition made by him to, and accepted by, the appellants, furnished them some machinery, among which was to be “One 36x72 submerged flue boiler.” Later, it was concluded that such a boiler was too small. The appellee’s own version is: “When the plant was run for a week or so, I saw that that 36 x 72 boiler had more to do than a boiler of that capacity should do, and I went to Mr. Lanz, personally, and made that fact known to him. I told him that I felt satisfied that a boiler 36x72 would be crowded too hard for that establishment, and if he was willing to pay the actual difference between the 36 x 72 and 42 x 84 boiler, I would feel better satisfied over that size of boiler. After talking a little with Mr. Lanz about that, he told me, ' Wachs, you go ahead and put in what is right and charge us the difference.’ On the strength of that, I ordered a 42 x 84 submerged flue boiler from Mr. Mathews.”
We assume that the appellants knew that the appellee did not manufacture boilers, and that the boiler was to be sent by Mathews, a boiler manufacturer in South Bend, Indiana. But the appellants had no relation with Mathews, nor did the contract between these parties require that the boiler should be the product of any particular manufacturer.
As the appellee states the bargain, it was left to him to put in what was right. How, if that did not put him in the position of a manufacturer, who, furnishing an article for a special purpose is by law a warrantor that it is fit for that purpose, yet, the contract being executory, the law will imply that the parties contemplated that the boiler should be a good boiler of its kind, merchantable, and will raise a warranty to that effect, and the appellee could fulfill his contract only by putting in a boiler of that character. Doane v. Dunham, 65 Ill. 512; Kohl v. Bindley, 39 Ill. 195.
And whether the boiler was, or was not of that character, was a question open to investigation, notwithstanding the use of the boiler by the appellants for two years. Underwood v. Wolf, 131 Ill. 425.
The question was one of fact for the jury, not the court, to decide.
The appellants sued the appellee for a breach of warranty, and put in a good deal of testimony as to leaks in the boiler, and unsuccessful efforts by the appellee to stop the leaks, and that they put it out because of the leaks.
At the close of the testimony the court instructed the jury to find for the defendants. This was error. The case should have been left to the jury to decide, under proper instructions, if asked, and without, if none were asked, and the court did not care to write any.
The judgment is reversed and the cause remanded.
