Hendry

On April 23, 1900, Charles Rapp and others, doing business under the firm name and style of Union Machine Company, entered into a contract with William Irvine, whereby they agreed to construct for him a double cylinder gasoline engine, and two metal tanks, to be completed and delivered at San Francisco on or before June 4, 1900. According to the terms of the contract Irvine paid $1,000 on account of the purchase price of the engine when the contract was entered into, and the balance of $550 was to be paid when the engine was set up on Irvine’s premises and had been in successful uninterrupted operation for the period of thirty consecutive days thereafter, or for so much of the thirty days as Irvine should desire to operate it. The engine was delivered and set .up; Irvine refused to pay the balance of the purchase price, and the claim of the Union Machine Company therefor was subsequently assigned to A. M. Hendry, who commenced this suit for its recovery. A second cause of action is set up in the complaint for goods sold and delivered and services rendered, amounting to the sum of $258.45. Defendant Irvine in his answer denied that such an engine as had been contracted for was ever…