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January 17, 1956



David H. Lund, for appellant.

Gerald J. Weber, with him Thomas S. Mazanowski, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 180 Pa. Super. Page 399]


Plaintiff sought to recover $1,250.00 for the construction of a reservoir to hold water on picnic grounds owned by defendant. After a verdict for the defendant the lower court refused plaintiff's motions for judgment n.o.v. and for a new trial and entered judgment upon the verdict. Plaintiff appealed.

The parties stipulated that the record shall consist of all relevant testimony as stated in the charge of President Judge ELMER L. EVANS to the jury and certain testimony of defendant's witness, Walter Brozewicz.

The testimony is summarized in the lower court's opinion as follows: "On the defendant's property, which had been purchased for use as a picnic grounds for many clubs, who made up the defendant organization, was great need for water. There was one water well which produced approximately a gallon of water per hour, and plans were made to drill additional wells. In September of 1950, the plaintiff appeared at a meeting when representatives of these various component organizations were discussing the matter and represented that he was willing to construct for them a reservoir with intersecting trenches and drains to gather and store water. He further represented that he had constructed similar reservoirs on his own and other property, at least one of them in the neighborhood, and

[ 180 Pa. Super. Page 400]

    that this construction was cheaper and better as well as more effective than their intended plan to sink further wells. He further represented that he would guarantee that he would supply all of the water necessary for the use of the defendant and have it ready for use during the summer of 1951. He further represented that if he did not produce sufficient water he was to receive no pay. Having no knowledge as to this type of construction, the representatives relied upon his representations and guarantee of results. There was further testimony, which varied somewhat, that the amount of water represented to be produced and held in the reservoir would be 8000 gallons or more. The plaintiff in company with representatives of the defendant visited the grounds. He selected the location, and constructed a concrete block reservoir 12 feet by 18 feet by 17 feet and at the bottom made a bowl shaped excavation approximately five feet deep in the center. The location of the reservoir was in shale rock, which will hold water only in wet seasons. In the summer of 1951 a very small amount of water accumulated in the bowl shaped receptacle but was muddy and never sufficient or clean enough for use. Defendant's experts at the trial showed that in this area the water table is low, and that shale rock will not hold water at a point above the water level of the surrounding area. In other words, the construction could have been no more effective than a sieve. At certain times of the year when water was high, it would run in; when it was low, it would run out. At one picnic in early 1951 the defendants hired a fire department to haul 8000 gallons of fresh water from which they used sufficient for their purposes on the occasion, and the rest ran out. The plaintiff's testimony was to the effect that he only agreed to do the work they ordered and made no representations as to the satisfaction which would be obtained

[ 180 Pa. Super. Page 401]

    by the suggested construction. In view of the jury's verdict, we must accept as true the defendant's version which was given in accordance with the above resume by several witnesses."

Appellant argues that there was no implied warranty to produce water and cites Book v. New Castle Wire Nail Co., 151 Pa. 499, 25 A. 120, as authority for this principle of law. In the present case the defendant does not rely upon an implied warranty but rather an express warranty. Appellant also contends that the warranty must be specific as to quantity or quality. One of the defendant's witnesses testified that plaintiff "guaranteed that it would produce plenty of water for two thousand people or more, and that it would be water that could be inspected on any occasion and would be fit by State inspection for drinking purposes." Another witness testified that plaintiff was at the meeting in September, 1950 and represented that the place he would install for them would store 15,000 gallons of water anyway. Casimir Staszewski also testified substantially the same as above. The defendant's attorney offered two more witnesses to the same effect but they were not called because it was stipulated that their testimony would be similar to that produced by the prior testimony. There was also testimony that the plaintiff used the words "No water, no money." What was said by Judge CARDOZO in Jacob & Youngs v. Kent, 230 N.Y. 239, 129 N.E. 889, is particularly applicable here: "The courts never say that one who makes a contract fills the measure of his duty by ...

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