Mair v. Williams

136 N.W. 1086 | S.D. | 1912

McCOY, P. J.

Plaintiffs brought this action to recover a balance of $232.30 alleged to be due upon a certain account for hardware, plumbing, and heating apparatus sold to and installed for defendant. Defendant answered alleging that the said heating-apparatus was warranted by plaintiff to be of good quality and workmanship and that the same would heat the home of defendant in a good and sufficient manner; that defendant purchased said heating plant relying upon said warranty; that said heating plant failed to comply with said warranty, and would not heat said house as warranted, whereby defendant was damaged. in the sum of $375. On the trial defendant testified: That he and his wife went to plaintiff’s place of business to purchase the heating apparatus. That plaintiffs showed them a Robinson furnace and said to them: “ ‘You need not be afraid of the Robinson furnace. There is nothing better on the market. I guarantee it to heat your house to satisfaction. Furthermore, I guarantee you a complete job. I said: ‘If you do that, it is good enough for me. We will take it.’ I relied upon this guarantee entirely when I made the purchase. The Robinson furnace failed to comply with the warranty. When it was any way cold, we could not get the rooms heated over 56 to 57 degrees. There was one little room just over the furnace that we could heat sufficiently to live in when it was cold. Used nineteen tons of coal that winter trying to heat the house.” Plaintiffs endeavored for a long time all through that winter to remedy the working of the furnace. Other testimony on the -part of defendant showed that he took out the said Robinson furnace and replaced the same with another new furnace costing $125 including labor, which new furnace heated his house very satisfactorily; that the Robinson heating apparatus installed by plaintiffs, if the same had been as warranted, would have been worth from $225 to $250; that said Robinson furnace as installed by plaintiffs was worthless, excepting certain pipes and registers which were used by defendants in installing the new furnace, and were of the value of $43. Plaintiffs denied 'that they so warranted said Robinson furnace; and there was testimony on the part of plaintiffs tending to show that said Robihson furnace as installed by plaintiffs was of the value of $97.25, including pipes, plates, coil, and labor. There was a verdict and judgment for plaintiffs for the full 'amount of their claim.

In his charge to the jury the court, among others, gave the following instruction: “While I do not desire to express any opinion as to the weight of the evidence, I will call your attention to the fact that the defendant’s witness Skiff, who put in the new furnace which the defendant is perfectly satisfied with, replaced the rejected parts of the plaintiffs’ furnace and heating apparatus for the sum of $125. You cannot therefore, upon the evidence, in any event allow the defendant any greater credit than $125 upon plaintiffs’ claim of $232.20, leaving still a balance of $107.20, so that, in any event, the plaintiff must still recover at your hands at least $107.20 with interest thereon at the rate of 7 per cent, per annum from January 16, 1907. Of course, if you should find that the furnace and heating apparatus as it now is since the said Skiff replaced the furnace put in by plaintiffs with certain other parts is of greater value than the furnace and heating apparatus put in by plaintiffs would 'have had, had there been no breach of warranty, if there was a warranty, then you cannot allow the full amount of $125 as a credit; but no more than the actual difference between the furnace and heating plant warranted and the furnace and heating plant installed by plaintiffs” To the giving of this instruction defendant duly excepted and now urges ■the same as error, as giving to the jury a wrong rule for the measure of damages, and being a rule under which the plaintiffs might have recovered the full amount of their claim, although the jury might decide in favor of defendant upon the question of the making of the warranty of the Robinson furnace. We are of the opinion that appellant is right in his contention. The measure of defendant’s damage in case the jury found.there was a warranty of the furnace was the difference between what said Robinson furnace would have been worth had it been as warranted, and its actual value as-it in fact turned'out to be, regardless of the value or cost of the new furnace which was put in to replace the same. The new furnace which heated defendant’s house to satisfaction might have been worth much less than the Robinson furnace had that heated the same house to satisfaction. The Robinson furnace might have been a much more durable and better constructed furnace, and had much more intrinsic value, when it worked satisfactorily, than the one which replaced it. The fact alone that the new furnace heated the house to satisfaction was not proof that the new furnace was of greater value than the Robinson furnace had that also heated the house to satisfaction. There is no other evidence of the value of the new furnace than that it cost $125, including the labor of installing it. There was no evidence on which to base 'such an instruction. If the jury believed the evidence of defendant that the Robinson furnace would have been worth $250, if as warranted, and that defendant used $43 worth of the fixtures thereof in replacing the new furnace, and that the Robinson furnace was otherwise of no value, then defendant’s damages were $207, no matter what he paid for the new furnace. Yet the court, in effect, instructed the jury to take into consideration the cost and actual value of the new furnace; that defendant was not, under some circumstances, even entitled to the $125 costs of the new furnace as damages; that, if the new furnace was in fact worth more than the Robinson furnace had it complied with the warranty, the profit in the deal for the new furnace, over and above the value of the Robinson furnace had that complied with the warranty, should also be deducted from defendant’s damages, and if the profit thus derived was in excess of the defendant’s damages defendant could not recover even if the Robinson furnace was warranted as claimed by defendant and there had been a breach of such warranty. There was no evidence on which to base such an instruction. It will not be necessary to consider other assignments of error.

The order and judgment appealed from are reversed, a new trial granted, and the cause remanded.