
    No. 25,506.
    Smith System Heating Company, Appellant, v. School District No. 44, Bourbon County, Henry Scott, Director, Frank Pinter, Treasurer, and Fred Dodge, Clerk, Appellees.
    SYLLABUS BY THE COURT.
    Sale op Heating Plant — Breach of Warranty — Evidence. The evidence is held to have been sufficient to sustain a finding of a breach of warranty of the quality of a heating plant.
    Appeal from Bourbon district court; Edward C. Gates, judge.
    Opinion filed January 10, 1925.
    Affirmed.
    
      Fred W. Bayless, of Fort Scott, for the appellant.
    
      John L. Connolly, of Fort Scott, for the appellees.
   The opinion of the court was delivered by

Mason, J.:

The plaintiff installed a heating plant in a district schoolhouse, and brought this action to recover the agreed price. The school district resisted collection on the ground that a guaranty of its operation with respect to heating and ventilation had been broken. On a trial without a jury judgment was rendered for the defendant, and the plaintiff appeals.

The principal contention of the plaintiff is that there was no evidence to sustain a finding of a breach of warranty — that the evidence conclusively showed that the heater complied substantially if not literally with the terms of the contract, and that if at any time it failed to do so the fault lay in the failure of those using it to follow instructions. There was considerable testimony in support of the plaintiff’s view, but there was also some of a contrary tendency. Witnesses for the defendant testified not only that the heater did not give proper results, but that the agent who sold it, upon request of the board, agreed to remove it within ten days; that he said all he wanted was authority to take it out. A review of the evidence in detail is not regarded as necessary to show the basis of the decision we reach, which is that it was sufficient to support the judgment.

Complaint is also made of the admission of evidence tending to contradict the terms of the written contract. We think the evidence was sufficient to sustain a finding of a breach of the warranty as written, and inasmuch as no jury was present a reversal would not be ordered even if the challenged evidence was not competent, the presumption in that case being that it did not influence the decision.

The judgment is affirmed.  