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EIMCO CORPORATION v. LOMBARDI (06/15/60)

June 15, 1960

EIMCO CORPORATION
v.
LOMBARDI, APPELLANT.



Appeal, No. 429, Oct. T., 1959, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1955, No. 3552, in case of The Eimco Corporation v. Joseph Lombardi & Sons. Judgment affirmed.

COUNSEL

Horace N. Lombardi, with him Anthony J. Smith, for appellant.

David H. Kubert, with him Henry I. Jacobson, for appellee.

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

Author: Watkins

[ 193 Pa. Super. Page 2]

OPINION BY WATKINS, J.

This is an appeal from the judgment of the Court of Common Pleas No. 2 of Philadelphia County entered on a verdict in favor of the Eimco Corporation, the plaintiff-appellee, and against Joseph Lombardi & Sons, the defendant-appellant, in the amount of $883, plus interest; and from the order of the court below dismissing the defendant's exceptions and request for a new trial.

The Eimco Corporation is a manufacturer of mining equipment, and sells direct to contractors; Joseph Lombardi & Sons is such a contractor, engaged in construction work. They have done business with each other for several years, in that the defendant purchased from the plaintiff several pieces of equipment, repair parts and material on an open account.

[ 193 Pa. Super. Page 3]

The defendant, contemplating the start of a tunnel construction job, after some negotiations with the plaintiff's agent, purchased two Model 12-B-55 Eimco Rockershovels under a written contract of purchase. The court below described the equipment: "A Rockershovel is a machine used in tunnel construction; it is used for mucking, that is to say for removal of the dirt and debris from the tunnel 'heading'. The shovel loads the dirt and debris into little cars by means of which the dirt is transported to the shaft and removed to the surface for disposal. The movement of the Rockershovel is similar to that of a man with a shovel propelling dirt over his shoulder."

The machines were manufactured by the plaintiff and delivered to the defendant on the job site in October 1952. When put in operation, the one machine functioned properly; the defendant had trouble with the other one and after several hours of use had to repair it. The parts which caused the malfunction were either defective or damaged by improper or negligent operation. But, whatever the cause, the machine did break down four times during its early operation. After notice to the plaintiff of the difficulty, the entire lower deck of the machine was replaced by the plaintiff without charge, after which the machine operated without further trouble. The plaintiff contends that the difficulty arose because the machine was operated under water, causing the lubricant in the gear box to be washed away and the friction created caused the bearings and the gears to be damaged. The defendant claims the malfunction to be due to defective parts but presented no proof of this contention.

In May of 1953, the plaintiff brought this assumpsit action against the defendant for the unpaid balance of the account. The defendant, although admitting the claim, sought ...


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