
    Buckley & Scott, Inc. vs. David Siperstein et al.
    No. 83693.
    October 31, 1930.
    For plaintiff: Littlefield, Otis & Knowles.
    For defendants: Isadore S. Horen-stein.
   BLODGETT, P. J.

Heard without a jury.

Action to recover upon a contract for sale and installation of an oil burner.

Burner was installed in premises of defendant, who paid three installments upon same and refused to pay the balance due under contract on the ground that the burner failed to furnish heat required.

Evidence showed that owing to the use by defendant of a certain oil, the test of which fell below that required for practical use in such burner, said burner clogged up and failed to function properly. Plaintiff’s agents made some sixteen efforts at various times to remedy the trouble and advised defendant that the burner would not properly function unless oil of a certain test were used.

There is nothing in the contract which specifies that oil of a certain grade must be used. The question then is whether such a condition is implied as a part of the contract.

There are various different oil burners on the market, some designed for the rise of every crude oil, others, like the type of the device here used, which require the use of oil of a certain grade. Defendant was informed by agents of plaintiff that the use of a lower grade of oil would result in failure of the device of plaintiff to work satisfactorily. The evidence discloses that defendant failed to use the grade so recommended and that the burner failed to function properly.

The warranty of plaintiff is the ordinary warranty that material and equipment shall be installed in a workmanlike manner, and that plaintiff will replace defective equipment.

Clause 5 of “Terms & Conditions” provides that user will follow instructions “for the care and operation or the heater.” This defendant failed to do as to use of a certain grade of oil.

The Court is of the opinion that there is an implied condition that the user of the device will comply with instructions as to the grade of oil proper for use in such burner.

Decision for plaintiff against David Siperstein for $584.67 and costs.

As to defendant Dora 'Siperstein, decision for defendant for her costs.  