Opinion
Argued June 2d 1915
Decided July 16th, 1915.
ACTION to recover a balance alleged to be due for merchandise sold and delivered, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J.; facts found and judgment rendered for the plaintiff for $107, and appeal by the defendant. No error.
Cornelius J. Danaher, for the appellant (defendant).
Patrick J. O'Brien, for the appellee (plaintiff).
No question of law is presented by this appeal. The plaintiff sued upon the common counts to recover for certain rubber tubes sold and repaired. The defendant, among other things set up in his answer and counterclaim, alleged that under "the oral agreement under which said items mentioned in the bill of particulars were furnished," the tubes were to be "puncture proof, blow-out proof and free from any defect, latent or otherwise." The court found what the oral contract was under which the tubes were delivered and repairs made, that it did not conform in respect to warranty to that set up by the defendant, and that the plaintiff had complied with the contract which it is found was made. The only ground of error urged in the brief and argument of the defendant is, that no such agreement as the court has thus found was alleged in the complaint. The plaintiff might recover under the common counts for goods delivered and repaired under the special contract. The court properly found, and made a part of the record on appeal, the contract under which the goods and services were furnished. That was put in issue by the defendant's answer and counterclaim, and because of his request for a finding for appeal, and of the questions of law which he proposed to raise thereunder, it became necessary for the trial judge to set out the contract between the parties.