Hoisting Engine Sales Co.v. Hart

• Decision Date: 20 November 1923
• Citation: 237 N.Y. 30,142 N.E. 342
• Parties: HOISTING ENGINE SALES CO., Inc., v. HART.
• Court: New York Court of Appeals Court of Appeals

237 N.Y. 30

142 N.E. 342

HOISTING ENGINE SALES CO., Inc.,

v.HART.

Court of Appeals of New York.

Nov. 20, 1923.

Action by the Hoisting Engine Sales Company, Incorporated, against John J. Hart. From a judgment of the Appellate Division Second Department (205 App. Div. 897,198 N. Y. Supp. 921), affirming unanimously a judgment of the Trial Term entered upon a verdict of a jury in favor of defendant on his counterclaim, plaintiff appeals by permission of the court.

Judgment affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

Stockton & Stockton, Kenneth E. Stockton and Edward R. Whittingham, all of New York City, for appellant.

Kellogg & Rose, William K. Hartpence and Franklin Nevins, all of New York City, for respondent.

CRANE, J.

The plaintiff and the defendant entered into an agreement of which the material part is as follows:

‘Lease.

‘The Hoisting Engine Sales Co., Inc., lessor, hereby leases to John J. Hart, lessee, the following equipment subject to the following terms:

‘One 40' boom, all steel Shannon Traveler with an 8 1/2x10 D. C. D. D. Lambert hoist with swinger and counterweight drum.

‘Delivery to be made at Nutley, N. J.

‘Return delivery to be made to our yard at Long Island City with trucking charges prepaid to above yard or to an equal distance elsewhere if so directed. Lessee agrees to return equipment in as good condition as when received less wear incident to normal service in the hands of a competent operator.

‘Equipment to be used by the lessee on his contract at Singac, N. J.’

After the defendant had installed the traveler and hoist, it broke down completely and failed to do the work for which it was hired. The defendant had a subcontract with the Brady Company in the state of New Jersey to excavate a trench any lay about 10 miles of water pipe. The pipes were made of steel, 30 feet long and 72 inches in diameter, and weighed about 4 1/2 tons each. With the derrick the defendant intended to operate an orange peel bucket to do the digging and also intended to use the same machine to put the pipe in the trench. The hoist could not be operated as it was designed to work, and the boom broke when attempting to lift one of the pipes. That the machinery was unfit for the purpose for which it was hired has been determined by the jury and the unanimous affirmance of its verdict by the Appellate Division concludes us from examining the question.

The defendant having returned the traveler and hoist, this action was commenced to recover the rental reserved in the lease. The defendant counterclaimed by setting up a breach of warranty and demanding the damages sustained in consequence thereof. From a judgment recovered by the defendant the plaintiff has appealed, presenting what it claims to have been errors in the admission of evidence to vary the terms of the writing as given above.

[1] The position the plaintiff takes is this: The writing contains no express warranty that the traveler and hoist will do the defendant's work; there is no implied warranty so there was no warranty at all. Therefore, if this be true, it was error to permit the defendant to give in evidence the conversation with the plaintiff's president, preceding the execution of the lease, wherein he was told the nature of the defendant's contract and the kind of machinery required. This, says the plaintiff, added an express oral warranty to the written lease, as no implied warranty arose out of the transaction.

When John J. Hart, the defendant, was on the stand, he was asked:

‘Q. What was the general nature of that contract? A. It was laying a pipe line. Q. Well about how long a pipe line, and what kind of pipe? A. It was a steel pipe, 72 inches in height, 30 feet long, and about 10 miles of work. Q. Do you know Mr. Cist, the president of the plaintiff company? A. I do. Q. Did you have a conversation with Mr. Cist in regard to your contract over in New Jersey? A. I did in Mr. Cist's office. Q. Now state what you said to Mr. Cist and what Mr. Cist said to you? A. I told Mr. Cist what I wanted. I said: ‘Have you got a traveling derrick? I want to use an orange peel on it to do the digging.’ I also wanted to use the same machine to put in pipe. He said: ‘I have got a rig that you can use; in fact, it is over in Jersey now.’ I said, ‘What kind of a machine is it?’ and he said, ‘It is a Lambert engine, 8 1/2 by 16, with a swinger on it, and it is a Shannon traveler.’ I says, ‘What kind do you call a Shannon traveler?’ and he said, ‘It is a machine good for 10 tons.’'

This testimony was received over objection and exception.

In the first place, we must note that the written lease refers to a purpose for which this traveler and hoist were to be used. ‘Equipment to be used by the lessee on his contract at Singac, N. J.’ These are the written words. What do they signify without any oral testimony to explain them? First, they signify that the plaintiff knew that the defendant had a contract to do work at Singac, N. J. Second, they make clear that the plaintiff also knew that the equipment it was leasing to the defendant was to be used on that work. Third, that from the nature of the equipment the plaintiff knew that the work to be the hoisting of dirt and materials. Where the writing is sufficiently specific to state all these things, I do not consider it a departure from the instrument to show a little more in detail what the defendant's contract was and that the plaintiffknew all about it. The plaintiff in writing says:

‘I know that you want my hoisting machine for use on your contract in Singac, N. J.’

Does this not reasonably imply that it also knew the nature of that contract and generally the kind of work it called for? It does not vary the terms of the written instrument to show by parol that the plaintiff knew what it was writing about when it referred to the defendant's contract.

[2][3] This case was not tried on the theory of an express warranty, so let us proceed to consider the implied warranty if any. If there be an implied warranty in the hiring of machinery for a special purpose, that it is and will be fit for such use, or at least will work, then the warranty may be proved or implied even though the hiring was by written agreement, containing no warranty. ‘All implied warranties, therefore, from their nature, may attach to a written as well as an unwritten contract of sale.’ Carleton v. Lombard, Ayres & Co., 149 N. Y. 137, 146,43 N. E. 422, 424. Thus there is an implied warranty in manufactured goods sold by the maker that they are free from any latent defect growing out of process of manufacture (Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163; Carleton v. Lombard, Ayres & Co., supra); also in the sale of seeds by the grower there is an implied warranty that they are free from any latent defect arising from improper cultivation (White v. Miller, 71 N....