
    Michael E. Moore, Appellant, v. The Otto Gas Engine Works, Respondent.
    Second Department,
    March 4, 1910.
    Negligence — improper installation of pumping engine—facts raising question for jury — contract construed — “ successful ” operation of machine.
    Action to recover for damages to property caused by the alleged negligence of ■ the defendant in installing a pumping engine under a contract providing for payment when the engine should be in “ successful ” operation. Evidence examined, and held, to justify a finding by the jury that the mechanism was improperly assembled so that it ran at an excessive speed, failed to accomplish the end intended and caused damage.
    
      Held, further, that under the evidence it was for the jury to say whether the defendant undertook merely to erect the engine as an independent piece of machinery, or whether it assumed responsibility for the results of its operation, and to determine whether the defendant’s negligence was the proximate cause of the injury.
    Where a seller agrees that an engine installed by him to remedy defects in a pumping system shall work “ successfully ” to be successful it must accomplish the result intended.
    
      Appeal by the plaintiff, Michael E. Moore, from a judgment of the Supreme Court in favor of the defendant, entered in'the office of the clerk of the county of Suffolk on the 19th day of June, 19:09, upon the dismissal of .the complaint by direction of the court after a trial at the Suffolk Trial Term, the verdict of a jury theretofore rendered in favor of the plaintiff having been set aside, and also from an order entered in said clerk’s office on the 15th day of Jume, 1909, setting aside the verdict and directing the dismissal of the complaint. ■ ' ■ ■
    ' Rowland Miles, for the appellant.
    
      J. Woolsey: SKepard [ Woolsey A. Shepard with him on the brief], for the respondent. ,
   Burr, J.:

At the' close .of the entire evidence defendant moved to dismiss the complaint. Decision upon such motion was reserved, and the case was submitted to the jury, which found a verdict in favor of the plaintiff. Thereafter the learned justice who presided at tire trial set such verdict aside and granted the motion to dismiss, and from such order and the judgment, entered thereon this appeal is taken.

Tire ground .of the . action was negligence of the defendant in connection with the jDerformance of certain work-which it undertook for the plaintiff.. In 'April, 1908, plaintiff was the owner of a hotel at St. James, which was supplied with water from a . driven 'well. The engine which operated the pump had broken down, and there is evidence from which tlie jury were justified in finding that plaintiff called upon the defendant, had a conversation with its manager,.explained to him about the old engine and the circumstances of the well, and that he replied: “ I understand what you require, and we will sell yon an engine to operate that well for so much in.oiiey, and take the old engine back.” Thereupon a written contract was entered into, the material parts of which are as follows:

“New York, April 20th, 1908.
“The Otto Gas Engine Works, Philadelphia, will please forward to -the undersigned at St. James, L. I., New York, via L. I. R. R., at once from this date, or as soon as possible, delivering oil cars in Hew York, one ji 21 ‘Otto’ Gasoline Engine, of 3 1/2 actual horse-power, without cast-iron base, and Fig. 514 Pump Jack, in consideration of which the undersigned agrees to pay the sum of Two Hundred 00/100 Dollars.
“ Terms:
“ Less Freight.
“ Cash when engine is in successful operation.
“ Price includes one trip of man to erect machine.
“ Otto Engine # 11696, Outfit ‘ 1,’ to be returned Fob, St. James, in addition to above cash payment.”

Subsequently defendant shipped to the plaintiff an engine and pump jack and sent a man to erect it. . Upon sufficient evidence the jury found that-the mechanism was improperly assembled; that pulleys of too large a size and of improper proportion were employed; in consequence of which the pump jack ran at so high a rate of speed that within a few hours the pump rod in' the cylinder was twisted and broken, and that in consequence of this no watér whatever ■ could be drawn from the well, and plaintiff was put to large expense in repairing the damage.

Defendant contends, first,t\vAt all that the contract called upon it to do was to" erect an engine which would run properly as an independent piece of machinery, and that it assumed no responsibility for the effect of such operation upon other portions of the pumping machinery ; and, second, that there was not sufficient evidence that the faulty erection of the engine, pump jack and accessories'thereto was the proximate cause of the injury complained of. In granting the motion for the' nonsuit, the learned trial justice so held. In our opinion, both of these questions were for the jury to determine. By the express provisions of the written contract, defendant not only sold an engine ánd a pump jack, but agreed to erect the “machine.” Plaintiff was called upon to pay only when the machine was “in successful operation.” It follows, therefore, that defendant’s contract was not complete until that result had been brought about. It is too refined a construction of language to contend that the engine “ successfully operated ” when it caused the pump to make a certain number of strokes per minute without regard to the effect thereof. The agreement was not only that the engine should operate, but that it should successfully operate. That only can be said to be successful which terminates “ in the accomplishment of what is wished or intended.” (Century Dict. title “ Successful.”) What plaintiff wished was to draw water from his we'll, and what defendant intended was to furnish and set up a machine consisting of engine and pump jack, which, if the ptlier parts of the mechanism were in good order, should produce that result, or, as defendant’s agent expressed it, “ operate that well.” The practical construction put upon the contract by the defendant supports this contention, for, after complaint was made by the plaintiff that the engine ran so fast that the pump rod stuck in the cylinder and stopped the well from working, it sent a man. to plaintiff’s premises to try to reduce the speed of the engine by putting smaller pulleys on the engine and larger ones on the jack. There was abundant evidence upon, which the jury could-find that the excessive speed at which the engine operated produced the injury-■complained of. There was no evidence of any defect, in any other part of the pumping machinery prior to the time when defendant-set up the engine and pump jack and started the machine in operation. The pump rod had operated properly before, and it operated properly when the engine first started, and continued to do so for several hours. The pump rod, when taken out, was found to be bent and strained. There was evidence that the proper number of strokes per minute'for pumps in wells similar to that of plaintiff was twenty-five to forty-five per minute, while under defendant’s arrangement it was made to operate at the rate of one hundred and fifty strokes per minute..

. Finally there was evidence that after the broken pump rod was removed and a new one put in and the speed of the engine reduced to about thirty-five strokes per minute the pump once more operated successfully.

The judgment and order appealed from should be reversed and a new trial granted, with costs to the plaintiff and appellant.

Woodward, Jenks, Thomas and Rich, JJ., concurred.

Judgment and order reversed and -new trial granted, with costs to the plaintiff, appellant.  