Lewistown Foundry & Machine Co. v. Hartford Stone Co.

Citations

• 92 Ohio St. (N.S.) 76

Syllabus

<p>Charge to jury — Confined to evidence on issue pleaded, when— Breach of warranty — Defective machinery — Delay in operation of factory — Burden of proof — Duty of purchaser upon discovering defects — Retention of defective machinery — Measure of damages — Section 8449, General Code.</p> <p>1. Where no evidence is offered upon an issue joined by the pleadings in the case, the trial court is not required to charge the jury upon such issue, but, on the contrary, should direct the jury not to consider it. (P., C. & St. L. Ry. Co. v. Fleming, 30 Ohio St., 480, approved and followed.)</p> <p>2. Where, in an action for damages for breach of warranty, it is claimed by the purchaser that the defective machinery, covered by the warranty, delayed the operation of the factory of which it is a part, and it appears from, the evidence offered by the purchaser that other causes contributed to the delay, the burden is upon the purchaser to show, by a preponderance of the evidence, what part of the delay was caused by the defect in the machinery warranted and what damages, if any, were sustained by reason of the delay so caused.</p> <p>3. Where an article covered by a contract of warranty is purchased for the purpose of being used as a separate unit in a factory, and the operation of the whole factory depends upon’this unit properly performing its part, both in quantity and kind, with the other parts, the purchaser cannot retain this article in place in his factory for an unlimited time after discovering that it is defective and recover as damages the daily loss in the operation of the entire factory, but must within a reasonable time substitute a machine, in place of the defective one, that will do its part of the entire work without delaying the operation of the other parts.</p> <p>4. If the purchaser elect to retain such defective machinery as a part of his factory, notwithstanding its failure to produce the quantity of the product manufactured by the factory that it is warrant