Gottlieb

An appeal by the defendant corporation from a judgment entered for the plaintiffs in an action, to recover the balance of the agreed price pf a garbage incinerator and chimney purchased by the defendant and erected at its place of business in Oakland, California, together with the costs of erecting a second chimney in connection with the same incinerator.

On April 22, 1927, the plaintiffs agreed in writing to install the incinerator mentioned for $1,080, and in connection therewith to erect a 12-ineh brick chimney, lined with firebrick for $500, a total cost of $1,580, which the defendant agreed to pay in installments as follows: $500 upon completion and $100 per month thereafter until paid.

According to the plaintiffs the conditions found to exist at defendant’s place of business after the contract was made were thought to render impracticable the erection of a chimney of the kind or at the place therein previously contemplated by the parties. It was therefore agreed that the location of the incinerator should be changed, and a chimney of a different type from that described in the contract erected, which was accordingly done. The chimney erected was of brick from the basement…