Opinion
June Term, 1903.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.
In this action the plaintiffs sought to recover a balance of $490.04 for work, labor and services performed for the defendant and materials furnished. The principal matter litigated upon the trial was the defendant's liability to pay a balance of $175 claimed to be due for a barrel-heading machine with knife head, which was constructed and furnished under a written contract between the parties. The trial judge held, as appears from his opinion, that the agreement contemplated the construction of a machine which would suit the purposes of the defendant's business, and that as the machine furnished did not comply with this requirement, the defendant could not be compelled to pay for it. I think that this construction of the contract is correct, and, hence, that the court was justified in rejecting this portion of the plaintiffs' claim. That claim also embraced an item of $102 for a knife head with six knives, which was subsequently supplied in a futile attempt to make good the defects of the barrel-heading machine. The plaintiffs were in no better position to recover this item than to recover the $175 balance claimed to be due for the machine itself. As to the remainder of the claim, however, the judgment dismissing the complaint appears to be erroneous. The items thereof were established by competent proof, and the defendant offered no evidence whatever in opposition. Upon the case as it stood at the close of all the evidence the plaintiffs were entitled to a judgment for the amount sued for, $490.04, deducting therefrom the balance claimed for the barrel-heading machine, $175, and the $102 claimed for the composition knife head with six knives, to wit, $213.04. In failing to award the plaintiffs this amount the decision was against the evidence, and for this reason the judgment must be reversed. Goodrich, P.J., Woodward, Hirschberg and Jenks, JJ., concurred.