*1 Bobbick Chem. Co. v. Pbest-O-Lite 209 1911.] ineligible person appointing an secretary of the board and payment salary. of approved had We assumed alone, allegation that this without done that it was cor- ruptly faith, or bad awas sufficient cause. haveWe competent assumed that it charter San Francisco provide for the removal a member of the board educa- tion, although may he inbe, law, an state, officer of the admin- istering a branch of the system, state school and the constitu- (art. XI, tion 8y2)’, claimed, see. it is expressly does not allow city charter do more than fix his term of officeand the of appointment time and mode or election. We it unnec- find essary to decide either of these propositions, express and we opinion concerning no them. petitioner follows had during title to the office period in question, and that he entitled to the mandamus. a peremptory

Let issue prayed writ for. Sloss, J., Angellotti, J., Henshaw, J., Lorigan, J., and Mel- vin, concurred. J., Department No. 2692. June 19, A.

[L. One. (a CHEMICAL COMPANY BOBRICK Corporation), Ap pellant, v. (a PREST-O-LITE COMPANY Corporation), Respondent. Purpose—Warranty

Sale—Articles Manufactured for Particular of Fitness.—Under section 1770 of the Code, Civil one who manu- an article an factures under order for a purpose warrants reasonably for purpose. it is fit sale Warranty May Id.—Breach Fitness—Vendee Refuse to Per- Delivery an agreement form Prior Vendor.—Under during years specified term of a number of machines for the inflation tires vendor, accomplish designed purpose, parties theory upon, the articles so constructed would be purpose; accomplish if appar- becomes ent, accepted paid after vendee has for portion machines, they accomplish purpose by cannot reason of in the according inherent defect some to which CLX Cal—14 Bobrick Chem. made, may are to be vendee refuse in advance to on with waiting instead until the vendor has manufactured delivery offered the machines still to bo furnished and then the same. judgment

APPEAL from a Superior Court of Los *2 Angeles County. Judge. Monroe, Charles

The facts are stated of the court. McKinley, Appellant. W. for J. & McClure, Respondent.

Woodruff for ANGELLOTTI, J. This action was plaintiff instituted corporation, assignee which is the of G. A. Bobrick of a con- years a of agreed tract for term three under which Bobrick an defendant, furnish Indiana eleven corporation, thous- parts tire-inflating (each and of apparatus sets set con- valve, sisting coil, bushing), specified of one one and one agreeing price per set, pay the defendant to order and for during year term, five thousand said sets the first during óf said sets each of the and three thousand second and years The contract third of the term. was dated December By 6,1906. provision therein, a contained defendant at once sets, thousand of said at the scheduled price ordered three notified per set. On June both Bobrick $4.45 plaintiff agreement, that it canceled this and and then more thereunder. had received receive ordered, three thousand sets which it retained 1137 of the brought action was to recover paid $8290.35 for. This remaining 1863 sets the three thousand sets pay for, defendant refused to receive or ordered, which remaining eight thousand profits $23,600.00 loss refusal to on with the con- caused defendant’s sets, Judgment aggregate $31,890.35. went making an tract, appeal here an from and we judgment. such to in this appliances referred

The Bobrick, constituting, of Mr. accord- of an invention result appliances great improvement then claim, a ing to his one that tires, could be the inflation manu- use for Chem. considerably than less factured and sold for United using, then under contract defendant was corpora- Liquid Oxygen Company, California States & February 21, 1906. tion, which contract was dated by him, or under were to be ready for use to defendant. order, and him delivered States United the defendant and between term also for the Liquid Oxygen Company granted defendant years. three The last-named contract manu- right tire-inflating devices exclusive sell the Liquid Oxygen Com- factured Air & the United States the Air pany, designated herein as which will hereafter be Oxygen Company, and territories all of the states its XII of except United nine. Under States the Air obligated year at least one thous- pay order and for each therein, further, not to order and, of the devicesdescribed any other source devices, any part thereof, from *3 Oxygen Company. than the Air & There evidence conclusions that sufficient sustain by the defend- devices contract covered Bobrick’s later with ant of an product involved some that were the features by conveyed earlier to the Air invention which he had him Oxygen & Company; that features were contained these Oxygen the devices Air covered the contract the Company defend- defendant; with this contract was containing authority ant’s sole for the sale of device such to de- features, and that it was therefore essential being the fendant’s able to sell the device covered Bobrick Oxygen should Company contract that the Air & contract remain in contract important force. It was also that said competition from in the protect should remain force to thereby. sale of such devices as covered At same absolutely time, it is clear considered that defendant im- necessary that it relieved from the burden should be posed by paragraph contract, XII if it was to assume of that created contract. proposed burden Bobrick be was, negotiations preceding Bobrick at the of the time execution, execution of his and at the time of contract such engineer vice-president and mechanical director and Oxygen east from Company, the Air & and had been sent Bobrick Chem. among and, business, on its company California en- company and confer with defendant things, other arisen in that had deavor certain difficulties settle February Although there to the contract of 1906. certainly suf- point, the evidence was some conflict support ficient to the conclusion that defendant insisted into entered proposed the contract Bobrick could modi- Air & it unless thereof, and, XII as so paragraph fied elimination of new modified, force, continued and would enter into the only understanding. contract The evidence on such trial legally support also of the sufficient inducing court the execu- Bobrick, he, as tion of represented to defendant that of the an officer one of owners of the stock principal and extent, Oxygen large to a Company, did, officer, etc., orally prom- control company, said and as such agreed ised and with if defendant would agreement enter into said him, or cause inflating tires, sale of his he cancel would Com- and eliminated from the Air canceled agreement with pany paragraph XII, that said exception remain and continue paragraph should XII of in full elimination of force, and for en- of the consideration said contract would be agree- tering The written into the new with him. contained no reference ment between Bobrick and defendant to this matter. ample support

The evidence was conclusion not have assurances, that defendant relied on such agreement except entered therefor. into the Bobrick obtain this modification endeavored to *4 com- Oxygen that Company contract, but the directors of that, pany grant at to the result same, first refused the with provision thereof comply to with the defendant requiring one it to order for at least thousand pay April a resolution therein, 24,1907, the referred on devices to adopted by annulling was said directors to directing to such annulment sent formal notice of be whereupon given defendant, notice was to defendant. Such May 1907, on notified Bobrick thereof defendant, 28, Chem. Co. was the contract notifying him that unless telegram, further eliminated, it would XII at once renewed with advised as it was him, with inasmuch cancel its contract infringing without it not sell the Bobrick device that May Company. On Oxygen the Air & patents owned having received telegraphed again him, again, on him, and answer, it canceled its plaintiff, gave to both him and 1907, it notice June 4, of the 12, 1907, the directors same On June effect. unanimously matter and Oxygen Company reconsidered the para- with its contract voted reinstate thereof, and eliminated, and notified defendant graph Company once notified the defendant at final and acted already accepted it had such annulment and was thereon; position to such it would adhere entirely tank now out of the “tire business.” allegations found, in accord with The trial court further the device be pleadings, contained in defendant’s failed to do and by Bobrick under furnished perform, that perform it was to do and the work sold liquid gas would not cause the contained defective, condition, in a gaseous in the tanks to enter the but tire liquid in contained up, same would freeze so that said gaseous condition, tanks not enter the tire defective, the valves in said device were also and would using operator. after same leak a few times appears- order necessary, to be conceded that it purposes to render the device liquid gas be contemplated parties, that the should all through wholly changed gas passing appli- into while solely in inflated ance and enter the tire should very gas. from the time form of While it is true that delivery by contract to the time of first Bobrick under his many complaints there were attempted rescission working fur- defendant did not know nished, the evidence indicates that defendant unsatisfac- until after its cancellation of contract how It was tory purchasing from it. proved to be those time of the on behalf of that at the evidence including had been hand, had on those that trial it still hundred of the eleven unsatisfactory, over nine returned as *5 Prest-O-Lite Co. Cal. 214 Bobrick Chem. Co. v. [160 delivered Bobrick. We hundred odd sets that had been accept finding of the trial court as a conclusion must itself, invented, that there some defect in the device it was up time, perfected, and constructed Bobrick being reasonably particular purpose prevented it fit for sets intended, rather than a conclusion that the device were not constructed accord with the furnished earnestly insisted that there invented. While Mr. Bobrick any claim, opinion was no basis for we are of the point of such a must be held that the evidence on this finding say, law, nature that we as matter cannot support. of the trial court is without sufficient Taking finding up discussed, last we are of the judgment furnished sufficient for a for defend basis damages part ant this action to for refusal on its recover 6, to take further sets under the contract of December sufficiently finding 1906. Aside from its claim that is not evidence, sustained a claim that have concluded we only point cannot maintained, made that, only remedy if defective, the sets offered were defendant was to accept upon refuse to them and insist delivery of complying sets in all respects with the and that it not, accepting paying por while tion of goods, base a refusal to further upon already accepted. defects those This contention is supported by the in so far as a failure of authorities mere the vendor to deliver quality articles of the and character stipulated (See Guernsey for is concerned. West Coast v. Co., Tillman, Lumber 414]; 87 Cal. Pac. Vallens v. [25 213].) just 103 Pac. the first of the cases cited, lumber, purchase the sale and complaint the lumber delivered was cut thin,” cigars “too and in the other case the claim was that delivered under a contract for the sale and cigars up sample did not come to the that had fur been nished and constituted a of the contract. as we But, seen, implies here material defect in the distinguished itself, from a failure of the articles manufactured and furnished to accord with the device as invented and constructed Mr. Bobrick. sets fur manufactured in nished were accord the device Chem. although so Bobrick, but intended. reasonably fit accom- sufficiently perfected had not been device itself par- both contemplated intended plish purposes *6 in the future to be furnished ties, and set reason- not be would such device which was in accord with facts that the think ably We intended. 1770 of the Civil section to make case were such as this "one who manu- provides applicable. That section Code purpose, an order factures an article under pur- reasonably fit for that it is warrants the sale that with his in accord manufactured pose.” The articles to be de- to defendant invention and delivered parties signed purpose, and accomplish to a so constructed theory that articles upon the contracted If it is purpose. accomplish that would be fit to ven- apparent articles to be furnished made of some standard, reason up dor cannot come to this to according are in to which defect view case here in made, which assume to be the we must why the finding apparent is to, referred no reason contract, may in to on with the vendee not refuse advance of- waiting manufactured and instead until has then delivery furnished, and fered for the sets still to be hardly The latter course same. apparent dealing be consonant fair where it is expense great at the vendor in fact unsatisfactory warranting would be to an extent compelling rejection their when offered. upon this

It follows that the conclusion of the trial court question judgment in favor furnishes sufficient basis of defendant. finding understanding to the parol in to the as Oxygen Company

elimination of the Air sufficiently evidence, sustained presents appear exceedingly in a case which it would unfair require proceed with the Bobrick contract unless the Air & in modified in respect stated, and as so modified continued force. No prior made such modification was defendant’s cancellation however, question is, the contract. There some whether Bobrick Chem. understanding parol avail defendant view of way "the fact that was no of the written contract between Bobrick and the doubt whether of Bobrick found statements court to have been made representations may false constituted such be the basis unnecessary question rescission. decide view upon finding already conclusion our effect dis- cussed, unnecessary and it is likewise the question consider whether, in view of the toas matter the elim- paragraph XII, ination of said the Bobrick against public as to defendant policy void because of the relationship Bobrick to the Air Company. judgment is affirmed. Sloss, J., Shaw, J., concurred.

Hearing in Bank denied. denying hearing in Bank the court Bank filed the *7 following July 17, 1911: opinion on

THE The decisionin this placed COURT. case was opinion solely ground device to be furnished by Bobrick under his contract failed to do perform work it do perform, Upon point sold etc. receding we see no reason for from the views forth in set opinion. stating erroneous that there was evidence sufficient to sustain the conclusion that the devices covered Bobrick’s involved some features that were contained devices covered the con with defendant, tract and that authority sole the latter contract was defendant’s for the sale containing features. view of the sole ground upon which the decision is based this error is not rehearing. material, not warrant and does rehearing petition denied.