Loveland v. Aymett's Auto Arcade, Inc.

• Decision Date: 07 April 1936
• Citation: 184 A. 376,121 Conn. 231
• Parties: LOVELAND v. AYMETT'S AUTO ARCADE, Inc.
• Court: Connecticut Supreme Court

184 A. 376

121 Conn. 231

LOVELAND v. AYMETT'S AUTO ARCADE, Inc.

Supreme Court of Errors of Connecticut.

April 7, 1936

Appeal from Court of Common Pleas, Hartford County; Abraham S Bordon, Judge.

Action by Norman S. Loveland against Aymett's Auto Arcade, Inc. for the agreed price of an oil burner and equipment sold by the plaintiff to the defendant wherein defendant counterclaims for damages resulting from the improper functioning of the burner as installed, brought to the court of common pleas for Hartford county and tried to the court. Judgment for the defendant on the complaint and for the plaintiff on the counterclaim and the plaintiff appeals.

Error and case remanded.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

William N. De Rosier, of Bristol, for appellant.

Frederick W. Beach and S. Russell Mink, both of Bristol, for appellee.

BROWN Judge.

The finding corrected in so far as the record warrants discloses the following pertinent facts: The plaintiff, engaged in the business of selling heating and electrical equipment, by a written contract of November 3, 1933, agreed to sell, and the defendant, engaged in the business of selling automobiles and conducting a gasoline filling station, to buy, at the agreed price of $375, " 1 Westinghouse Marr Power Burner installed with 275 gal. tank 17" fire pot. *** Capacity of burner 1200 ft. of radiation." The defendant in contracting relied upon the plaintiff to select a suitable burner and to make it work properly. The installation was completed November 9, 1933. From shortly thereafter, and frequently throughout the heating season of 1933-34 the defendant had trouble with the burner, which did not operate properly. The pilot light at times went out; adequate heat for the defendant's building was not provided; and an excess of carbon formed in the burner, resulting in improper combustion and the deposit of soot upon the interior walls. Frequent complaints of these conditions made to the plaintiff brought repeated service calls during the heating season, and he endeavored to remedy the trouble, but did not succeed. The oil burner was a good one, and adequate, if properly installed, to heat the defendant's building; but it never was properly installed, and the directions of the manufacturer's expert to seal all apertures in the combustion chamber were not followed. This was the principal cause of the burner's failure.

Prior to this contract with the plaintiff, the defendant had had a suitable boiler properly installed, to which the plaintiff attached the burner. The improper combustion of the burner through an explosion caused a separation of the top of the boiler from the base which aggravated the difficulties with the burner. This made it essential that the boiler be reset to obtain proper combustion by the burner. Although the defendant learned of this in February, 1934, it did nothing about it until December 9, 1934, when it had another dealer do the work at an expense of $20, and at the same time, because of the continued unsatisfactory operation of the burner, had it removed and a different one installed by this dealer in its place. The other equipment installed by the plaintiff in connection with the burner, however, consisting of an oil tank, oil line, electric connections, etc., of the total value of $105, were not removed, but were and still are being utilized in the new installation. The defendant retained possession also of the thermostat and pressurestat, which it is ready to return to the plaintiff with the burner. After paying a total of $85.38 on account of the $375 purchase price, the defendant refused to make any further payments as agreed, because of the failure of the burner to function properly.

The trial court concluded that because of the failure of the burner to operate properly and to heat the defendant's premises, " the defendant had a right to cancel the contract on December 4, 1934," and to recover of the plaintiff the $85.38 paid, plus $20 expended for cleaning the walls, a total of $105.38; and suggests in its memorandum of decision that the burner, together with the thermostat and pressurestat valued at $105, should be returned to the plaintiff. The pleadings are comprised of the complaint claiming damages for the purchase price under the sales agreement; the defendant's answer admitting the execution of the agreement, but alleging that the burner was improperly constructed and installed, and did not function properly, resulting in the depositing of soot, and causing an explosion damaging the burner and the defendant's building, that the plaintiff's attempts and the defendant's expenditures to remedy the trouble have been unavailing, and that though the plaintiff represented the burner would properly heat the defendant's building, which the defendant relied upon in signing the contract, the burner failed to do so; and the defendant's counterclaim alleging that " because of the defects of such instaliation in such burner, the defendant has been...