6 N.Y.S. 865 | N.Y. Sup. Ct. | 1889
The evidence authorizes the finding that plaintiffs warranted that the wheel should be of the capacity stated, and that there was a breach of such warranty. The plaintiffs claim the wheel was not properly set, but the evidence warrants the conclusion of the referee that it was set substantially as the plaintiffs directed. The plaintiffs claim there was no warranty except as coupled with the condition that the wheel should be tried within 30 days, and, if not satisfactory, or made satisfactory, then to be returned. Whether there was such a condition was a question of fact for the referee to dispose of. His finding against it was not against evidence. We must therefore assume there was an express warranty; and this, although the contract was executory, the defendant had a right to rely upon; he was not obliged to rescind. Brigg v. Hilton, 99 N. Y. 529, 3 N. E. Rep. 51, and cases cited.
The matter of damages presents a more serious question. It is claimed by the defendant that the difference between the rental value of the mill with the wheel as furnished and such value with the wheel as warranted to be, together with the cost of taking out this wheel and putting in a new one, furnish the basis for damages. The referee has apparently proceeded on this basis, as he finds no other facts upon which to rest his conclusion of law as to the amount of damages. The evidence is not sufficient upon any other basis to support the finding as to damages. How much the referee allowed for the difference of rent, and how much for expense of removal, does not appear. His findings are excepted to as well as the evidence given on the subject. The defendant, to sustain his position, cites Griffin v. Colver, 16 N. Y. 496; Rogers v. Beard, 36 Barb. 37; Stamping Works v. Koehler, 45 Hun, 150; Cassidy v. Le Fevre, 45 N. Y. 562, In the Griffin Case the plaintiff agreed to build a steam-engine with boilers, etc., for the defendants, and deliver it by a certain day. There was a delay of a week in the delivery, during which time the defendants lost the use of certain machinery, which the engine was intended to drive, as the plaintiff knew. The plaintiff sued for the price, and the defendants recouped their damages for the delay. It was held that the ordinary rent or hire which could have been obtained for the use of the machinery whose operation was suspended for want of the steam-engine could be recovered as damages. In the Cassidy Case the same principle was asserted as applicable to a case where the use of machinery was lost during the time spent in making repairs to defective boilers. In the Rogers Case there was a neglect to repair a vessel within the time called for by the contract, and it was held that the measure of damages for the delay was the value of the rent of such a vessel as used or chartered at the time. In the Stamping Works Case the plaintiff leased of the defendant for a year certain premises, together with all the steam-power the plaintiff needed in a certain business known to defendant. There was a failure by defendant to furnish such steam-power. It was held that evidence tending to show what was the ordinary rent or hire of the machinery during the time of the deficiency of power was properly rejected, as no claim for damages upon this ground was alleged in the complaint; it being said that if there had been the proper allegation the evidence would have been admissible. These cases hardly sustain the defendant’s position. Here there was a sale with a warranty as to capacity; no question about delay in delivery. After the wheel was put in it was in use for two weeks, when the shaft broke. That was soon repaired, and then there was some further use or opportunity for use, when, upon 24th May, 1883, $200 of the price was paid. At that time, as the defendant téstifies, one of the plaintiffs told him that if the wheel did not turn out all right he would make it all right. During the summer it was
Judgment reversed on the exceptions, and a new trial ordered before another referee, with costs to abide the event.
Martin, J., concurs.
I am inclined to the opinion that the long-continued use of the wheel by defendant as disclosed by the evidence warranted a finding that the defendant liad accepted the wheel. Brown v. Foster, 108 N. Y. 387, 15 N. E. Rep. 608. I assent to a reversal.