Cohn

The appeal in this action is under the provisions of section 953a, 953b, and 953c of the Code of Civil Procedure, and both plaintiff and defendant have presented portions of the record in supplements accompanying their briefs. From these supplements, aided by reference to the voluminous typewritten transcript, we have attempted to get at the material facts of the case.

The plaintiff, and respondent, entered into a contract with the defendant corporation for the purchase from defendant of a gasoline engine at the agreed price of $1,850, to be installed for the purpose of pumping water for irrigation on plaintiff’s land in the county of Tulare. The contract contained a guaranty by the defendant company that the engine would develop fifty-five horse-power, with from 200 to 250 revolutions per. minute, from the use of oil fuel described as “No. 3, or Painter’s Distillate.” Plaintiff brought suit to recover damages arising from defendant’s failure to deliver the engine within the time agreed upon, and for failure of the engine, after it was installed, to meet the conditions of the guaranty. Claim of damages for delay was subsequently abandoned, by reason of a provision in the contract…