Brummett v. Nemo Heater Co.

Knowlton, J. An important question in this case is whether the words, “ flues of sufficient draft,” mean flues of draft sufficient for such ranges as the contract called for, when used in the ordinary way, or of draft greater than is ordinarily used with such ranges, and sufficient to produce complete combustion of the fuel when burned in an unusual way in connection with the heater furnished by the defendant. It appears that the house “ was built in accordance with the dimensions and plans and information respecting the construction furnished the defendant by the plaintiff.” We assume that this means furnished the defendant before the contract was made. The ranges, “supplied by the plaintiff, with the tubular grate and the smoke pipes attached, were selected and furnished by the defendant and paid for by the plaintiff, and were of the size and pattern recommended by the defendant.” The words “ sufficient draft ” must be interpreted in connection with the circumstances under which they were used. They must have been assumed by the parties to mean sufficient for these ranges, used in the ordinary way, in the absence of anything to show that the ranges would require a greater draft with this heater than is commonly used with such ranges. There was no intimation in the contract that a greater draft than is usual for such ranges would be required, and the plaintiff could not be supposed to know the fact, if it was a fact. On the other hand the defendant was supposed to know from the plans of the house what the size and length of the flues were to be. We are of opinion that the ruling on this part of the case was correct. The judge could not properly rule as matter of law that the plaintiff had waived the warranty contained in the contract. The evidence bearing upon this point was submitted to the jury with correct instructions. The testimony that the system had worked well in other houses was rightly excluded. This evidence was remote from the issue, which was, whether the heater as constructed in this house, was capable of warming the rooms mentioned in the schedule contained in the contract. The introduction of such evidence would have raised many collateral issues that could not properly be tried in this action. Exceptions overruled.