Kumberger v. Congress Spring Co.

"We agree with the learned trial court that the defendant was required 'by the contract to furnish the foundation upon which to place the engine. It did this. The plaintiffs, when they made the contract, had no notice that the foundation would require any care from them in respect to its solidity, and the contract imposed no obligation upon them in that respect. It is reasonable to suppose that, if such a requirement was to be made of them, the contract would have mentioned it. The contract does specify that the engine should be erected in defendant’s building; that is, in the place therein to be designated by the defendant, which place the defendant did designate.

*99The floor proved to be unstable; it was not obviously so at the time the engine was erected, and there is no suggestion of bad faith on the part of the plaintiffs in erecting the engine in a place they knew to be unfit. The difficulty is one which might have been avoided by a proper provision in the contract, but the plaintiffs, at the time of making it, had no knowledge about the floor, and the defendant no apprehension of its instability. The defendant having agreed to find the place, and having found it, it is its fault or misfortune that it proves unsuitable.

The objections to the admission of evidence we do not think well taken.

The judgment should be affirmed, with costs.

Paekeb, P. J., TIebbick and Mebwin, JJ., concurred; Putnam, J., not voting.

Judgment affirmed, with costs.