
    Blaisdell Machinery Company, Respondent, v. Brasher Breakwater Company, Appellant.
    (Supreme 'Court, Appellate Term,
    January, 1911.)
    Contracts—Actions on contract — Sufficiency of complaint—Averments as to performance.
    Sales: Warranties — Express warranties — Particular warranties — Capacity and efficiency of machinery: Waiver of defects by purchaser—’ Necessity of return or offer to return.
    'Where an offer for the construction of a machine duly accepted by the defendant contains, under the caption " Service for which compressor is proposed,” the following: “ Displacement 3117 Cubic feet per minute. Speed......Piston Speed 159 Revolutions per minute. Air pressure 15 Indicated Horse Power 156'” the agree- . ment between the parties consists of two things, one, a contract for a particular machine as such, and the other, a guaranty as to its capacity.
    In such a case, in an action to recover the price, an allegation of the delivery of the machine pursuant to the contract is not an allegation of the performance of the contract so far as the guaranty of the capacity of the machine for the performance of the specified work is concerned.
    Appeal by defendant from a judgment of the City Court of the city of New York in favor of plaintiff, bringing up for review an intermediate order directing such judgment.
    John R. Halsey, for appellant.
    William J. Dodge, for respondent.
   Giegerich, J.

The defendant appeals from a judgment entered in favor of the plaintiff for the relief demanded in the complaint and dismissing the counterclaim.

The complaint alleges that the defendant entered into an agreement in writing with the plaintiff wherein the plaintiff agreed to furnish and deliver f. o. b. cars at Bradford, Penn., - a machine known as an oiling compressor, according to the specification set forth in the agreement, a copy of which is annexed to the complaint and made a part thereof. The -agreement, expressed in the form of a proposal, gives quite elaborate specifications, covering -several pages, as to the construction of the machine, including the principal dimensions of the machine and the material of many of its parts, and many other details. It also, under the caption “ Service for which compressor is proposed,” contains the following: “ Displacement 3111 'Cubic feet per minute. Speed .... Piston Speed 150 Revolutions per minute. Air pressure 15 Indicated Horse Power 15'6.” The acceptance by the defendant is indorsed on this proposal.

The complaint further alleges that pursuant to said agreement the plaintiff duly delivered said compressor F. O. B. cars Bradford, State of Pennsylvania, and that thereafter and more than thirty days 'ago, the defendant duly received the said compressor.” It further appears in the complaint that the plaintiff, (according to the terms of the ■contract, has paid $9 60 on account of the total purchase price of $1,600, ten per cent, thereof being payable under fihe terms of the contract -a few days after the same was signed, and fifty per cent, payable against the hill of lading.

The answer contains neither general nor specific denials; hut for a defense and by way of counterclaim it alleges that the plaintiff warranted and represented that the compressor was sufficient for and capable of producing a displacement of 3,111 cubic feet of air per minute at a pressure of fifteen pounds, with 150 revolutions per minute on an indicated horse power of 156; and that the defendant, relying upon such warranties and representations, entered into the contract and paid on account $960 before delivery and received the machine when complete and set it up but found its capacity was not such as the plaintiff had warranted. It further alleges that none of the deficiencies were discovered or discoverable by tibe defendant until after the compressor had been, installed and .an attempt made to operate it, and that the defendant thereupon promptly called such deficiencies to the attention of the plaintiff, but that the plain- * tiff failed to correct any of them, and that the deficiencies made the compressor unusable in its condition as delivered by the plaintiff, and that in order to make it usable the defendant was compelled to purchase and add to its various parts and equipment at an expense of $564.62, and that the compressor as delivered by the plaintiff was worth $1,564.62 less than it would have been if it had had the capacity as represented and warranted by the plaintiff; and that by reason of such breach of warranty the defendant had been damaged in the sum of $1,565.62, $640 of which it asks to set off against the plaintiff’s demand and for the balance asks judgment.

The language of the Court of Appeals in Chapin v. Dobson, 78 N. Y. 74, 82, S3, seems directly in point, where it was said: “ The written contract and the guaranty do not relate to the same subject matter. The contract is limited to a particular machine as such. The guaranty is limited to the capacity of the machine. It is one thing to agree to sell or furnish machines of a specific kind, as of such a patent, or of a particular designation, and another thing to undertake that they shall operate in a particular manner or with certain effect, or, as in this case, that they shall do the buyer’s work satisfactorily. The first would be performed by the delivery of machines answering the description or the specifications of the patent; and whether they did or not conform thereto would be the only inquiry. As to the other, it in no respect touches the first, nor does it operate as a defeasance, but leaves it valid and to be performed, and the consequences of a breach of the guaranty are a recoupment or abatement of damages in favor of the defendant, and this is so, whether the contracts are in writing or not; for the guaranty is valid although not in writing, and the same rulq must apply, for in either case the relation of the guaranty to the contract would be the same.”

The learned court below in the opinion delivered expressed the view that, by failing to make a general or specific denial of -any of the material allegations of the complaint, which incorporated' the contract, the defendant admitted the contract and its due performance, and that the counterclaim for an alleged breach of warranty contained in the contract was inconsistent with the admission of performance. It should be observed, however, that the complaint does not allege performance of the contract by the plaintiff, but only alleges that, “ pursuant to said agreement the plaintiff duly delivered said compressor F. O. B. cars, Bradford, State of Pennsylvania, -and that thereafter and more than thirty days ago, the defendant duly received the said compressor.” There is here simply an allegation that the said compressor ” was delivered, but no allegation that it would perform the work as guaranteed. Under the decisions, it is plain that the •agreement between the parties in this case consisted of two things; one, a contract for a particular machine as such, and the other, a guaranty as to the capacity of that machine. In such a case the warranty is held to be a collateral agreement that survives acceptance; and a breach of the guaranty does not affect the contract for the specific thing, but leaves that valid and enforceable against the purchaser who, as in this case, must seek his remedy for the breach of the guaranty by way of recoupment or counterclaim, or by way of abatement of the damages in favor of the defendant.

In Heyworth v. Hutchinson, L. R., 2 Q. B. 447, cited in Chapin v. Dobson, supra, the defendants bought of the plaintiff a specific quantity of wool then at sea but expected to arrive; “ the wool to be guaranteed about similar to' certain samples ” referred to. The court held that, as the contract was for specific goods, the clause of guaranty was only collateral to the contract, and that the buyer could not reject the wool on the ground that it was not conformable to the sample, but that his remedy would be either by a cross action on the guaranty or by giving the infirmity in evidence in reduction of damages, which is precisely what the defendant has attempted to do in this case.

The judgment is sought to -be supported by Smith v. Coe, 170 N. Y. 162; but that decision, when properly read, is adverse to the respondent’s ease. There the court held that the facts did not show that it was sale of goods by sample and that there was no warranty which survived acceptance of the goods. That the court fully recognized the rule applied in Chapin v. Dobson, supra, is evidenced from the observation made at page 170 of the opinion, namely: “ But a warranty as distinguished from mere non-performance will generally survive delivery and 'acceptance and may be invoked by the buyer as a general or partial defense in any action to recover the price of the goods.”

The judgment should be reversed, with costs to the appellant in this co-urt and in the court below, and the order reversed and the motion for judgment denied, with ten dollars costs to the appellant.

Beady and Gavegak, JJ., concur.

Judgment reversed.  