Troy Laundry Co. v. Henry
23 Or. 232
| Or. | 1892
Moore, J.

Appellant brought this action to recover the sum of two hundred and seven dollars and thirty cents with interest on a promissory note of respondents, and the further sun of one hundred and seventy-five dollars with interest on an account for the price of a body ironer sold and delivered to them.

The respondents in their answer, after denying the allegations of the complaint, for a separate defense to the cause of action on the note aver that the same was *233given for the price of an extractor, a piece of laundry machinery; that the same was purchased under an express warranty that it would do good work and keep in repair for the period of one year; that in consequence of its faulty construction, it broke and became of no value, whereupon they rescinded the contract of purchase and notified appellant. For a second defense they aver an express warranty of the said extractor, the breach thereof, and an accord and satisfaction. For a third separate defense they aver facts showing an implied warranty of the said extractor, and then allege “ that said extractor was delivered to defendants on or about the fifteenth day of October, 1889, and put in operation in their said laundry, and attempted to be used for the purpose of extracting water from the clothes after the same had been washed; that said extractor proved to be imperfect, and not properly constructed, and unsuitable for the purpose of extracting water from clothes; that said extractor would and did, without fault of the defendants, run unevenly and out of balance, and was not efficient or suitable for use as a machine for the purpose of extracting water from clothes ”; that said extractor was so imperfectly made and constructed that when run and operated at the speed and under the conditions fixed and indicated by the plaintiff, it did, without fault of the defendants, and within less than four months from the “time it was put in operation by defendants, break, go to pieces, and become wholly useless and worthless for the purpose of extracting water from clothes after the same had been washed; that the defendants managed and conducted said extractor, when in operation, at all times carefully and according to the plan and design of working and managing the same as indicated and directed by the plaintiff.” They then aver a total failure of the consideration, and that in consequence thereof they have been damaged in the sum of two hundred and seven dollars and thirty cents, which they ask to offset against the claim of the plaintiff.

*234For a separate answer to the cause of action for the price of the body ironer, they aver an express warranty, a breach thereof, and rescission. For a second separate defense they aver facts showing an implied warranty of the body ironer, a breach thereof, and a total failure of the consideration, to their damage in the sum of one hundred and seventy-five dollars, which they pray may be offset against the purchase price. The reply put in issue all the new matter of the answer, a trial was had, and verdict and judgment for the defendant's rendered; whereupon the plaintiff appealed, assigning as error the admission of certain testimony, and the failure of the court to give certain instructions asked by plaintiff. At the trial all evidence of any express warranty was excluded for the reason the machinery was purchased upon a written order, of which the following is a copy:—

Troy Laundry Machine Company (Limited ):
No. of Order. Salesman, May.
San Francisco, October 1, 1889. Please ship f. o. b. the following machinery and supplies via steamer, for which we agree to pay four months’ note. Cascade Steam Laundry,
Henry Bros., Proprietors.
Portland, Oregon.
1 18-roll body ironer........................._$ 175 00
1 No. 26 extractor............................ 200 00
1 pressure blower_____________________________ 15 00
Shaft, If inch; body ironer to run at 150; shaft for extractor If, run 150, and pulleys for same.
Cascade Laundry,
Per M. E. Henry.

It should be added also that when the order was filled, seven dollars and thirty cents was charged for the pulleys; and the note for two hundred and seven dollars and thirty cents represents the price of both the extractor and the pulleys that connected it with the shaft.

*235The principal contention of the appellant is that the order is for separate articles; the extractor is one thing and for a separate price, and the pulley is another and for a distinct price; and the contract, therefore, in respect to the price in the order, is several. Based on this view, it claims in effect that unless the extractor is defective itself, and by reason thereof unfit for the purpose for which it was designed, and so went to pieces, it is only liable for a breach of implied warranty arising out of the facts; that the extractor and pulley cannot be considered as constituting one machine; that the pulley was no part of the extractor itself, and this being so it cannot be included in the implied warranties that the extractor was reasonably suitable for the purpose of the design; but the obligation of the appellant as to each is separate and distinct. Hence it claims that if the pulley was too large, and caused the extractor to revolve too rapidly, and that by reason thereof it broke and became utterly useless, it was not in consequence of any defect in the extractor itself, and therefore it is not liable for a breach of any implied warranty of the extractor, but only for the damages the respondents have sustained by reason of its negligence in furnishing them an unsuitable pulley to operate the extractor.

Testimony was offered by the defendants, tending to show that the extractor broke in consequence of a too high rate of speed caused by the pulley furnished by plaintiff upon the written order, and attached to the line shaft, upon the theory that the pulley was a part of the extractor, since no price was fixed therefor, and that it and the extractor were an entire contract of purchase To hold that a pulley was a part of a machine complete within itself, because it was attached to a shaft and was necessary in communicating power from the engine, presumably by a belt to the machine, would be to hold that because this pulley was connected with the engine, therefore the machine was a part of the engine. We do not think the pulley would be a part of the extractor if both *236were ordered at the same time and included in one purchase price. The contract might not have been sever-able, but the machine and pulley would be. Because a person bought a horse, buggy, and harness for a gross sum, does not make the harness a part of the buggy nor the buggy a part of the horse. As an entire contract, however, the purchaser who had agreed to buy these for a gross sum would be entitled to a delivery of all before an action could be maintained for a part. In Griggs v Stone, 51 N. J. Law, 549 (18 Atl. Rep. 1094; 7 L. R. A. 48) the court held that engraved copper shells used. on a mandrel of a printing machine for the purpose of printing cloth were not a part of such machine, though no printing could be done without them. In that case the court says : ‘ ‘ The test by which this question should be determined is the inquiry whether the shells are essential to the completeness of the machines for the purpose for which the machines were designed.”

Applying this rule to the case at bar, the pulley on the line shaft, though necessary to communicate power to the extractor, was no part of that machine. Each machine complete within itself must be governed by the implied warranties applicable thereto, and they could not be united so as to make one a part of the other except by an express contract. The implied warranty of the pulley was that it should be of the proper size, and reasonably fit for the purpose, so that when attached to the line shaft it should communicate sufficient velocity, and no more, to the machine operated thereby; and if the pulley furnished by appellant failed to do this, the breach is of the implied warranty of the pulley, and not of the extractor. This was a piece of laundry machinery complete within itself. The implied warranty was that it should be reasonably fit for the purpose for which it was designed, and any failure to perform this part of the implied warranty would be a breach thereof. The fact that the extractor was injured or destroyed by the defective pulley does not prove that the extractor was *237not reasonably fit for the purpose for which it was designed. Had the order for the extractor included an order for a boiler to furnish steam as a motive power with which to operate it, and under an entire contract at that, and had the boiler, in consequence of its faulty construction, exploded and destroyed the extractor, would any person claim that the extractor was broken in consequence of its faulty construction ?

Respondents claim that under the allegations of their answer “that they operated the extractor 'at all times carefully and according to the directions of the appellant, ” they could introduce testimony tending to show that the pulley w'as too large. It seems to us that the issues were not broad enough to cover this. The object of the answer is to notify the court and the opposite party of the facts relied upon as a defense so plainly that the plaintiff may be prepared to meet them. In Knahtla v. Oregon Short Line Ry. Co. 21 Or. 142 (27 Pac. Rep. 91), Bean, J., speaking for this court says: “The object of a pleading -would be entirely defeated if a plaintiff had the right to aver in his declaration one ground of action, and on the trial prove another and different one. ”

At the close of the testimony, plaintiff requested the court to give the following instruction: ‘ ‘ The defendants in their answer aver that the extractor broke down by reason of its faulty construction, but there is no issue in the pleadings as to its being speeded too high, and you cannot consider any evidence on that point. ” This instruction was refused by the court, and plaintiff excepted. We think the refusal to give this instruction was error, and for that reason the judgment must be reversed and a new trial ordered.