Modern Machinery Co. v. Perkins, Appeal No. 64

Appeal No. 64 | Del. Super. Ct. | Jun 6, 1911

Woolley, J.,

charging the jury:

Gentlemen of the jury:—This is an action of assumpsit, instituted by the Modem Machinery Company, the plaintiff, to recover from Clifton A. Perkins, the defendant, the sum of one hundred and ninety-five dollars and eighty-seven cents, with interest thereon from the first day of January, 1910, upon a claim for materials furnished and work done pursuant to a certain contract made between them. The issue in this action had its origin in the difference of views entertained by the parties thereto with respect to the terms of the contract, and is now submitted to you for your determination under the evidence and upon the law as the court will instruct you.

It is claimed by the plaintiff that at the special instance and request of the defendant, and pursuant to plans which were approved by him, it promised to make and did make for the defendant three air pumps containing a certain number of cylinders of specified dimensions and having an air pressure of seventy-five pounds to the square inch; that no specific amount was agreed upon as the price to be paid therefor, but that the plaintiff engaged to charge and the defendant to pay a reasonable amount for the materials consumed and the labor bestowed upon the pumps in their manufacture.

The defendant claims that he ordered the pumps to be made by the plaintiff for use upon his patented system for raising water, known as “ air water lifts ” that the plaintiff well knew the purpose for which the pumps were intended, and in addition to agreeing to make them of a certain number of cylinders of specified sizes, specially warranted that when connected with the air tanks of his apparatus and operated in connection with his system, they would produce in the tanks an air pressure of sixty pounds and upwards at the rate of one and one-half pounds and upwards per minute; that when installed and operated, the pumps failed to produce the pressure in the quantity and at the rate so warranted, and as a consequence the defendant expended and lost certain sums of money that in the aggregate exceeded the amount for which the plaintiff is suing in this action.

The plaintiff admits that it knew the pumps were ordered for the purpose of being used on the air water lift system of the defendant, but denies that it made any warranty in respect to the pumps or the effective character of their operation, other than they should have a pressure of seventy-five pounds to the square inch, which it maintains, they possessed.

[2] In legal contemplation a contract is an agreement between two or more parties to do or not to do a particular thing. In the case before you, the particular thing to be done was the building of pumps and the payment therefor. [3] A warranty is an express or implied undertaking by one of the parties, collateral to the main subject of the contract, whereby he promises or insures that the thing to be done shall be of the kind or quality stipulated. In the case before you, the plaintiff claims he warranted pumps with a pressure of seventy-five pounds and kept his warranty by supplying pumps with that capacity, and the defendant claims that the plaintiff warranted pumps with a pressure of sixty pounds and upwards to be made at the rate of one and one-half pounds and upwards per minute and broke its warranty by supplying pumps of a much less capacity.

[4, 5] If in this conflict of evidence you find that the plaintiff’s warranty was simply that the pumps should have a pressure of seventy-five pounds, and if you further find that the pumps whén delivered did in fact have the pressure so warranted, your verdict should be for the plaintiff, or if you find the plaintiff’s warranty to be as last stated and a failure of the pumps to make a pressure of seventy-five pounds when attached to the defendant’s system was due to defects or leaks in the system, and not due to any deficiency of their own, then likewise your verdict should be for the plaintiff, and in either instance for an amount that would reasonably compensate it for its expenditure of labor and material in designing and making the pumps in question.

[6] If, however, you find that the plaintiff warranted a pressure of sixty pounds and upwards at the rate of one and one-half pounds and upwards per minute, upon a tank of the dimensions shown to and known by the plaintiff, and if you find from the evidence that, when the pumps were attached to tanks of the size and dimensions indicated to ypu, they failed because of their ■own defects to show the pressure capacity and rate warranted, your verdict should be for the defendant, unless indeed you find that, notwithstanding their failure to perform as warranted, the pumps are still of some value to the defendant, and in that case your verdict should be for the plaintiff for such a stun as from the evidence you find the pumps reasonably to be worth.

Verdict for plaintiff.