Fundin
Fundin v. Chicago Pneumatic Tool Co.
Opinion
Opinion
McDANIEL, J.
This is an appeal from a minute order sustaining defendant Chicago Pneumatic Tool Company’s demurrer without leave to amend. The appeal should have been taken from the judgment of dismissal entered pursuant to the minute order. We construe the appeal to have been taken from the judgment (Zappas v. King Williams Press, Inc. (1970) 10 Cal.App.3d 768, 770, fn. 1 [ 89 Cal.Rptr. 307 ]) and address the case on its merits.
Facts
Lyle Fundin (plaintiff) operated a well-drilling business. He entered into negotiations with Shepherd Machinery Company (Shepherd) and Chicago Pneumatic Tool Company (Chicago) for the purchase of a Chicago Pneumatic RT 1800 drill rig. These negotiations included Fundin’s being flown to Chicago’s factory to examine the rig. A written contract was executed, and plaintiff took delivery of the rig on November 28, 1977.
Plaintiff was displeased with the rig. It did not drill as deep, or pump out as much mud, as he thought they had represented it would. It also was missing some tools and had hoses of a lower capacity than he thought it should have had. On May 15, 1981, he sued both Shepherd and Chicago for breach of contract, breach of express warranty,…