Kirkpatrick

pro tem. — Plaintiff appeals from a judgment of dismissal after demurrer had been sustained to plaintiff’s fourth amended complaint with leave to amend, and plaintiff had failed to amend his complaint. The demurrer was both general and special.

It is alleged in the complaint that the parties entered into a certain contract on the twenty-fifth day of March, 1922, wherein the defendant agreed to furnish plaintiff an oil engine, together with appliances and equipment specified in said contract, and to furnish a competent erector for installing the said engine and appliances, and to cause the same to be properly installed on a foundation in a workmanlike manner; that a copy of the contract was attached to the complaint and made a part thereof. The contract was in the form of a proposal signed by the defendant and accepted by the plaintiff, wherein the defendant proposed to furnish and deliver an oil engine, a pump outfit and certain equipment. The contract contained the following language : “You are to furnish necessary cement and gravel for foundation. We furnish competent erector for installation and to give operator necessary instructions on operation of engine.” The terms of…