Pennell v. McAfferty

Mr. Justice Scott delivered the opinion of the Court: The contract under which defendants put the furnace, or air-warmer, in plaintiff’s house, bound them, in case she followed their directions as to the construction, to “guarantee the successful working of both ventilation and warming.” This contract must have a reasonable construction. With proper management, if the furnace failed to produce sufficient heat .to warm the house, or if it was otherwise defective, plaintiff had the privilege to elect to rescind the contract, and recover back all money paid defendants for it, and such damages as she may have sustained. In case it was found the “ventilation and wanner” were unsuccessful, with the usual care, it was the duty of plaintiff to indicate, within a reasonable time, her election to rescind the contract on account of such failure. That, she did not do. The second furnace was put in her house in the winter of 1869, and, while it is true plaintiff frequently complained to defendants it was not satisfactory, yet she gave no notice of her desire to rescind the contract until Hovember, 1874. Previous to that time, defendants had'no license to remove it, notwithstanding they may have known, from plaintiff or otherwise, it was not ivorking successfully. Without notice to remove the furnace, defendants might well believe plaintiff had elected to retain it, although some defects were observable. The second instruction given for plaintiff declares, if she built her house with reference to receiving the heater and ventilation of defendants, under their direction and according to their requirements, and if they failed to heat and ventilate the house in a proper and successful manner, she was entitled to recover. This is not an accurate expression of the law as applicable to the facts of the case. It omits an important qualification that is necessarily implied in the contract, viz: the furnace should have reasonably good management in its use. Otherwise, it might not appear it was the fault of defendants it did not work well or answer the purposes for which it was intended, according to the terms of the guaranty. With this qualification added, the instruction states the law accurately, and, if made, it could have, with great propriety, been given. The judgment will be reversed and the cause remanded. Judgment reversed.