Bancroft

Plaintiff brings this action to recover damages arising from a defective elevator furnished him by defendant. He was nonsuited, and now appeals from an order denying his motion for a new trial. It is claimed on his part that the contract under which the elevator was sold and delivered was a written contract. This contention is denied, but, owing to the views we entertain upon other questions involved in the litigation, we leave the issue open, a decision of it not being necessary to the final disposition of the case.

The elevator furnished plaintiff by defendant was not suitable for the purpose for which it was to be "used, in this, that the drum thereof over which the cables passed was but fifteen inches in diameter, when it should have been at least thirty inches. The evidence discloses,that by reason of the smallness of this drum the elevator fell, many persons were injured, and great damage was entailed upon plaintiff thereby.

Plaintiff’s cause of action is based upon a claim of breach of warranty by defendant, and this claim takes a double aspect: 1. An express warranty in the contract that the elevator was suitable for the purposes for which it was furnished; and 2. An…