Vanderbeek v. Francis

• Decision Date: 30 January 1903
• Citation: 53 A. 1015,75 Conn. 467
• Parties: VANDERBEEK v. FRANCIS.
• Court: Connecticut Supreme Court

53 A. 1015

75 Conn. 467

VANDERBEEK

v. FRANCIS.

Supreme Court of Errors of Connecticut.

Jan. 30, 1903.

Appeal from court of common pleas, Hartford county; Epaphroditus Peck, Judge.

Action by Abraham Vanderbeek against Lyman H. Francis. Facts found, and Judgment for plaintiff. Defendant appeals. Affirmed.

The plaintiff sued upon the common counts, and filed his bill of particulars, showing debit items to the amount of $710.33. The largest of the items was for a steam engine priced at $475. Two items of credit were given, which reduced the balance claimed to be due to $165.33. The defendant answered by general denial and a plea of an additional payment. No question arose concerning any of the items of the bill of particulars, save the one above referred to. The court found that the claimed additional payment had not been made. In support of his claim to recover the $475 for the engine, the plaintiff offered in evidence a letter containing the specifications of the engine, and the terms under which it was ordered by and furnished to the defendant for use in his yacht. The engine was to accomplish certain specified results, and the price named was $475, net cost. The letter contained these provisions: "The engine to be our property during its trial of thirty days. If at the expiration of the 30 days it is satisfactory, and you have not notified us that it is not wanted, it is to be paid for. If advised that it is not, we will take the engine out, and no charge." The engine was of a new and peculiar type, and for a year or more after its installation, in June, 1896, it failed to accomplish the promised results, and did not work satisfactorily. During all this time the plaintiff was making alterations in it to remedy its defects, and no demand for payment was made, and no notice that the engine was not wanted given. In December. 1897, the plaintiff sent the defendant an itemized bill, in which the engine was charged at the agreed price. At some time between this date and February 1, 1898, the plaintiff asked the defendant whether he was going to accept the engine and pay for it, or not if not, the plaintiff said he would take it out. The defendant replied that he wanted it, and would pay for it as soon as he had the money. On February 2, 1898, the defendant wrote the plaintiff, excusing a delay in sending $200 as previously agreed upon, and promising to send the sum at a later date, adding, "at which time I will try and send the whole amount." On February 28th the defendant paid $400, and promised to pay the remainder soon. Such remainder has never been paid. The defendant has never asked that the price should be reduced because of any defects, nor has any other price than $475 been mentioned between the parties. The defendant has sold and delivered the engine as a part of the boat in which it was placed. Upon the trial the defendant claimed to show, in-reduction of the amount to be paid for the engine, (1) that it was of no value; and (2) that there had been a breach of warranty. The court ruled that...