59 Misc. 66 | N.Y. Sup. Ct. | 1908
The plaintiff proposed in writing, in consideration of $1,500, to instal its improved hollow blast furnace grates in an extension brick furnace to be built in connection with defendant’s steam boilers in its livery stable in Buffalo, N. Y., and guaranteed that the furnace would generate steam to the full capacity of the boilers, using a mixture of stable manure and coal as fuel; that no offensive odors would escape from the stack during the operation thereof and that such installation and use would comply with the health ordinances of the city of Buffalo. The proposition, also, contained this clause, viz.: “ If at the expiration of thirty days after the furnaces have been installed it is found that the above guaranties are not complied with, you will remove material holding same subject to our order and no payment shall be made.” " The defendant accepted such proposition. In pursuance thereof the plaintiff duly installed such grates and furnaces, completing their erection on December 21, 1906, and the defendant paid the plaintiff the sum of $500. During December, 1906, and January, 1907, the defendant operated the furnaces by burning a mixture of stable horse manure and coal as a fuel; offensive odors were generated and the guaranty was not complied with. On January 28, 1907, defendant paid plaintiff the sum of one hundred dollars to apply on the purchase price and continued their operation by use of such fuel up to. June 1, 1907; during all of which time defendant complained to the plaintiff that the guaranty was not complied with; that the furnaces failed to generate steam to the capacity of defendant’s boilers; that offensive odors were being produced and that the health authorities were insisting that such use of the furnace was a nuisance and must be discontinued. The plaintiff claiming that the defendant had accepted the furnaces, the defendant refusing to pay the balance of the purchase price, the plaintiff, on March 21, 1907, filed a mechanic’s lien upon the defendant’s property for the sum of $930, the balance claimed to be due on the contract, and, on the 15th day of April, 1907, commenced this action to foreclose such lien. It was the claim of the plaintiff that, by proper opera
The law undoubtedly is that, upon the sale of personal property with an express warranty as to its condition, the' vendee, upon a breach of such warranty, has two remedies: first, he may rescind, return the property and recover what he has paid; or, second, he may retain the property and recover as damages the difference between the actual value and what the value of the property would have been had it been as warranted. It is well settled that an express warranty survives acceptance. The difficulty, however, in applying such rule as the measure of the defendant’s damages is that the parties have contracted for a different and utterly inconsistent relief for this defendant in the event of
The plaintiff is entitled to the usual judgment of foreclosure.
Judgment for plaintiff.