Irvine v. Rapp — 9 Cal. App. 375

Majority

p. 375

[Civ. No. 462.

First Appellate District.

November 23, 1908.]

LOUIS A. IRVINE, Administrator, etc., Substituted for WILLIAM IRVINE, Deceased, Appellant, v. CHARLES RAPP et al., Respondents.

Headnote

. Action fob Damages—Defective Construction of Engines Sold— Delay in Delivery.—Held, that the subject matter of this action being for the counterclaim pleaded in Civ. No. 533, post, and designed to recover an excess of damages above the balance of purchase price of the engine sued for in that action, for alleged defective construction of the engine and for delay in delivery thereof, against a machine company made defendant herein, which was assignor of plaintiff respondent in the other action, and not a party thereto, and the two actions having been tried together, and submitted on the same evidence, the court did not err in denying plaintiff’s motion for a new trial herein, for the reasons set forth in Civ. No. 533, post.

APPEAL from an order of the Superior Court of the City and County of San Francisco denying a new trial. J. C. B. Hebbard, Judge.

The facts are stated in the opinion of the court in this case, and in Civ. No. 533, post.

Geo. W. Towle, for Appellant.

Mullany, Grant & Cushing, and Cushing, Grant & Cushing, for Respondents.

This is an appeal from an order denying plaintiff’s motion for a new trial.

The plaintiff in this ease is the defendant in the action entitled “A. M. Hendry vs. Louis A. Irvine, etc., No. 533,” this day decided, and is .brought to recover the same claim which in said action numbered 533 had been set up by said Irvine as a counterclaim—the bringing of a separate action being made necessary by the fact that the claim for damages of William Irvine (defendant’s intestate in said action numbered 533) was in excess of the amount claimed by plaintiff therein (who was the assignee of the Union Machine Com

p. 376

pany), and by the fact that the machine company was not a party to that suit. The two cases were tried together upon the same evidence; and in this case the court rendered judgment against plaintiff and in favor of defendants for costs. Plaintiff made a motion for a new trial, which was denied.

The points urged for a reversal of the order are the same as those considered in said case numbered 533; and for the reasons there given we think the action of the court in denying plaintiff’s motion for a new trial was correct. The order is therefore affirmed.

Cooper, P. J., and Hall, J., concurred.