
    Herman J. Kumberger and Joseph H. Clements, Respondents, v. The Congress Spring Company, Appellant.
    
      Contract — when the vendee of an engine is responsible for the foundation upon which it is erected.
    
    In an action brought to recover the contract price agreed to be paid for the erection of a gas engine upon the premises of the defendant, it appeared that soon after the engine had been put up and had gone into operation it ceased to work, because of. the sinking of its foundation. The plaintiffs never saw the building until they brought the engine there, and did not examine the floor upon which it was put, but were told by a servant of the defendant the manner in which the floor was constructed, and the contract did not expressly state which party was to furnish the foundation.
    The defendant selected the location where the engine was erected.
    
      
      Held, that the defendant was bound under the contract to furnish the foundation upon which the engine was to rest;
    That the defendant having agreed to furnish, and having selected the place where the engine should be put, if that place proved unfit for it, must bear the loss.
    Appeal by the defendant, The Congress Spring Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Saratoga on the 28th day of October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Saratoga Circuit, and also from an order entered in said clerk’s office on the 18th day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The judgment was for $912.10. The action was brought to recover upon the following Contract:
    “New York, Feb. tilth, 1894
    “ The Congress Spring Company,
    “ Saratoga Springs, N. Y.:
    “ Gentlemen.—.We herein propose to furnish and erect in your building at above address one White •& Middleton Gas Engine of six (6) actual horse power, put up complete, including all necessary connections, such as gas, water and exhaust piping, required to complete the job, leaving engine in satisfactory working order, and ready for driving belt, for the sum of seven hundred ($700) dollars, payable thirty (30) days after satisfactory completion of contract.
    “ All work performed as herein described and engine guaranteed, free from flaws and defects in workmanship and materials, for the term of one year from completion of contract.
    “We also guarantee the power of this engine to be six (6) actual horse power delivered to belt.
    “ Respectfully yours,
    “ KUMBERGER & CLEMENTS.”
    It was then and there accepted by the defendant as follows:
    “We accept the above proposition to furnish and erect engine as fully described. Please proceed with the work as quickly as possible.
    “C. D. THURBER,
    “ Secretary Congress Spring Company.”
    
      The defense set np was non-performance of the contract by the plaintiffs.
    The plaintiffs erected the engine pursuant to the contract, provided the contract did not require them either to construct a more stable foundation, or notify the defendant to do so. After the engine had been in operation a day or two, it ceased to work satisfactorily, owing to the fact that its foundation was not solid.
    The plaintiffs placed it upon the ground floor of the defendant’s building. This floor is made of plank, an inch and one-quarter thick, laid upon and nailed to stringers, two inches by four, two feet apart, imbedded flatwise in the sand. There was a brick floor in another part of the same room, and the plaintiffs proposed to place the engine there, but the defendant directed it to be placed where the plaintiffs put it. The engine is of metal, mostly iron, and weighs 2,200 pounds. It has a large iron base, five feet, six inches long, by twenty-two inches wide, the base standing on the floor. It is propelled by a series of gas explosions, which cause a jar at each explosion. The event shows that there ought to be a more stable foundation for the engine. The plaintiffs never saw the building until they brought the engine there. The plaintiffs did not examine the floor, but were told by one of the defendant’s servants how it was constructed.
    
      Edgar T. Brackett, for the appellant.
    
      Charles S. Lester, for the respondents.
   Landon, J.:

"We agree with the learned trial court that the defendant was required 'by the contract to furnish the foundation upon which to place the engine. It did this. The plaintiffs, when they made the contract, had no notice that the foundation would require any care from them in respect to its solidity, and the contract imposed no obligation upon them in that respect. It is reasonable to suppose that, if such a requirement was to be made of them, the contract would have mentioned it. The contract does specify that the engine should be erected in defendant’s building; that is, in the place therein to be designated by the defendant, which place the defendant did designate.

The floor proved to be unstable; it was not obviously so at the time the engine was erected, and there is no suggestion of bad faith on the part of the plaintiffs in erecting the engine in a place they knew to be unfit. The difficulty is one which might have been avoided by a proper provision in the contract, but the plaintiffs, at the time of making it, had no knowledge about the floor, and the defendant no apprehension of its instability. The defendant having agreed to find the place, and having found it, it is its fault or misfortune that it proves unsuitable.

The objections to the admission of evidence we do not think well taken.

The judgment should be affirmed, with costs.

Paekeb, P. J., TIebbick and Mebwin, JJ., concurred; Putnam, J., not voting.

Judgment affirmed, with costs.  