6 Ga. App. 125 | Ga. Ct. App. | 1909
The Warner Elevator Manufacturing Company sued Hamilton Yancey for the price of an elevator which it had contracted to install and did install in the defendant’s storehouse in Rome, Georgia. A verdict was directed for the plaintiff; and the defendant’s motion for a new trial, based on the general grounds and on alleged error in directing the verdict, was overruled. The contract for the elevator provided that the plaintiff was to erect in the defendant’s building in Rome, “in a complete,, workmanlike, and substantial manner,” one of its “latest improved, direct-acting, hydraulic passenger elevators,” and the contract described specifically the constituent parts of the elevator, its size,, finish, and material, and expressly warranted in every respect the elevator as described. The defendant filed a plea setting up a total failure of consideration, in that the plaintiff had failed to comply with its contract to install in his building in a complete, workmanlike, and substantial manner the elevator described in the contract. He avers, that the elevator described in the contract was a passenger elevator, but that the elevator put in by the plaintiff, under the most favorable circumstances, with the water-pressure called for by the contract, required seventeen seconds to-ascend from the first to the second floor of the building, a distance of 14 feet and 3 inches, and that a passenger elevator, such as de
It being conceded that the contract is one of express warranty, any implied warranty as to rate of speed must be excluded. It is claimed, however, by the defendant that a passenger elevator such as described in the contract, under the water pressure described, would ascend from the first to the second floor, a distance described, in about five seconds. Conceding this to be as claimed by the defendant, the burden would be on him to show that this elevator, with a water pressure of eighty pounds to the square inch at the operating valve, would not make the speed required for a passenger elevator. Now, the speed of an hydraulic elevator obviously depends upon the amount of the water pressure at the operating valve, and the defendant was to supply this water pressure. His own evidence conclusively shows that he never did supply a sufficient quantity of water to produce a pressure of eighty
We think that the evidence in this case conclusively shows, that the plaintiff complied with its contract in every respect; that it did install for the defendant the passenger elevator specifically •described in the contract; that the defects alleged in the plea were immaterial variations which did not affect the value of the •elevator; and that the failure of the elevator to make the rate of speed desired by the defendant, and claimed by him to be the usual and customary speed of passenger elevators, was not caused by any defects in the elevator itself, but was due entirely to the failure of the defendant to supply the requisite water pressure which the contract made it bis duty to supply.
Judgment affirmed. Gross-bill of exceptions dismissed.