Grupe

A judgment for damages followed findings that oil refining equipment sold by Fred P. Glick, doing business as Fabriform Steel Products Company, did not operate as represented by him. Upon the appeal from that judgment, the principal questions presented for determination concern the measure of damages to be applied and the sufficiency of the evidence to support the findings as to certain amounts of damage sustained by the purchaser.

It appears that three machines which the appellants sold to George G. Grupe, Jr., upon representations that they would re-refine oil, were not properly designed or constructed. Grupe paid $500 for each of them under a contract which gave him the exclusive selling rights for the device, and upon the express warranty that they were suitable for the purpose of re-refining oil. Grupe sold each machine for $1,500 and he was negotiating for the sale of five more at a price of $1,800, respectively, when it was ascertained that the equipment was unsuitable for the warranted purpose. The trial court found that the equipment bought by Grupe had a total value of $75 at the time of its delivery but, if as represented, its value would have been $4,500, and awarded…

I concur in that portion of the majority decision which directs the trial court to ascertain the reasonable cost of the services to be rendered by respondent in servicing the machines in accordance with his agreements of sale. However, I dissent from that part which requires a retrial and findings on the issue of profits, particularly a finding as to the availability on the market of a reasonable substitute for the oil refining machines warranted. The evidence on that subject is conflicting and would support *695 a finding either way. The trial court has made a finding that there was no substitute and it must be approved. The finding to which I refer states that defendant knew of and contemplated the resale of the machines by plaintiff and “that as a direct and proximate result of the defective design and construction of said oil refining machines, as hereinbefore set forth, and the noneomplianee with the warranties of defendants and their authorized agents and representatives, as hereinbefore set forth, plaintiff has been unable to make any other or additional sales of said oil re-refining machines and has been required to discontinue the effort, and nas thereby suffered a loss…

A judgment for damages followed findings that oil refining equipment sold by Fred P. Glick, doing business as Fabriform Steel Products Company, did not operate as represented by him. Upon the appeal from that judgment, the principal questions presented for determination concern the measure of damages to be applied and the sufficiency of the evidence to support the findings as to certain amounts of damage sustained by the purchaser.

It appears that three machines which the appellants sold to George G. Grupe, Jr., upon representations that they would re-refine oil, were not properly designed or constructed. Grupe paid $500 for each of them under a contract which gave him the exclusive selling rights for the device, and upon the express warranty that they were suitable for the purpose of re- refining oil. Grupe sold each machine for $1,500 and he was negotiating for the sale of five more at a price of $1,800, respectively, when it was ascertained that the equipment was unsuitable for the warranted purpose. The trial court found that the equipment bought by Grupe had a total value of $75 at the time of its delivery but, if as represented, its value would have been…