Thi.s a'ction was broiight to recover the price of two hot air ftitaaces put, by the plaintiffs, into the female seminary conducted by the defendant, in the city of Rochester, together with a small amount for labor and materials, in addition to the furnaces. The cause was tried before three referees, who reported in favor of the defendant. It appeared on the trial, that on the 26th day of December, 1853, the plaintiffs and the defendant entered into a written contract, by which the plaintiffs agreed to sell and deliver to the defendant, at the building of the Tracy Female Institute; in said city, two of Chilson’s furnaces, being Nos. 3 and 4, and to put up the same, with the air chambers connected at the top, using the furnace, appurtenances and fixtures already in said building; also, to supply all the materials, and mason-work necessary to put up the same, for two hundred dollars. By the contract the plaintiffs were to put in a cold air register face in the base of the recitation room, when they put in the furnaces. The contract provided for the doing of other work, and furnishing other materials connected with the furnaces and the building, for which the defendant was to pay the plaintiffs. By the same contract the plaintiffs warranted that the furnaces should be capable of heating all the rooms and wall of the building except the recitation room and front chamber, in the second story of the building, and private hall, to a temperature of seventy degrees, at all times, with good care and usage; which warranty was to continue in force until the 1st of April thereafter. The whole work to be completed by the evening of the 31st day of December; then instant. There was another provision, to the effect that if the furnaces failed to heat the building, they were to be taken away by the plaintiffs, at their expense, on the demand of the defendant. There were other provisions in the contract not deemed necessary to be here stated.
It appeared in evidence that the plaintiffs put up the fur
There was.no evidence given to show that the cold air register face was put in the base of the recitation room, as provided'in the contract; and one ground upon which the referees reported
There is still, in my judgment, another important aspect of the case in which the referees have taken an erroneous view of the rights and liabilities of the parties. Assuming it to be correct, as the referees hold, that by a proper construction of the contract the defendant was not bound to pay for the furnaces before the 1st day of April, 1854, when the warranty expired, I think they were wrong in holding that the fact of the plaintiffs’ making improvements on the furnaces after the
There is still another consideration, which the referees seem to have overlooked, which has an important bearing on the case, The contract provides, as before stated, that in case the furnaces failed to heat the building they were tó be taken away by the plaintiffs, at their own expense, on the demand of the defendant. Here then was a means agreed upon between the parties, by which the defendant, in a certain event, should be at liberty to rescind the contract; and the contingency upon which such right to rescind should depend, as well as the act by which the defendant’s election to rescind should be determined, were also specified. It seems to me that it cannot with propriety or justice be now said, that the defendant had the right to retain the possession and use of the property until after the time had expired during which the warranty was to continue, without determining her election to rescind in the way agreed upon, without becoming liable to pay what the property was worth. If it was not as warranted, and therefore worth less than the contract price, I see no difficulty in the referees’ making a proper deduction therefrom, by way of recoupment, Ho question seems to have arisen, at the trial, inrelation to the pleadings of the respective parties, and if any should arise, on a future trial, it would-be competent, if necessary, for the referees to adjourn the hearing, in order to give either party an opportunity to apply to the court for an amendment.
Upon the whole, I think the report should be set aside, and a new trial awarded, with costs to abide the event,
Johnson, T. R. Strong and Welles, Justices.]