“It is expressly agreed that any claim for defects or defective parts shall be no defense for non–payment of any sums due under this contract, but that all such sums shall become due and payable in accordance with this agreement and shall be immediately paid when due.”
“The purchaser acknowledges that said property covered by this contract is in good order and condition when delivered and accepts the same without warranty of mechanical or other condition.” “The undersigned hereby acknowledges and accepts delivery at * * * the property listed in the within contract pursuant to its terms.” Peterson.” On December 16, 1939, defendant paid plaintiff the additional sum of $750 and on said date the parties executed a formal written conditional sale contract which provided that the balance of the purchase price ($1,250) should be paid in twelve equal monthly installments, that the equipment therein described was “used”, that it was to be installed at the Giant King Mine in Nevada County. On that date defendant paid down $500 and received therefor a receipt which recited that the seller had received $500, that when completed balance of $2,000 was to be paid $750 in cash and $1,250 on contract of 12 months from date of delivery, “Engine and Generator to be working order upon acceptance by M. The evidence which amply sustains the findings of the trial court shows that on November 28, 1939, plaintiff agreed to sell and defendant agreed to buy a Fairbanks–Morse Diesel engine, generator and excitor, at an agreed price of $2,500. After trial by the court sitting without a jury, findings in favor of plaintiff were made and judgment for the amount of his demand, plus attorney's fees and costs, followed. Defendant answered and filed a cross–complaint, alleging fraud on the part of plaintiff and praying for damages in the sum of $11,000. Plaintiff brought this action for the recovery of the possession of a Diesel engine and generator or for the value thereof alleged to be $2,500. Dinkelspiel, of San Francisco, for respondent.
District Court of Appeal, Third District, California.
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