#### Bass Foundry & Machine Company, Appellee, v. Sulzberger & Sons Company, Appellant.

Gen. No. 22,315.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Wíiaiam N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.

Reversed and remanded.

Opinion filed May 1, 1917.

Rehearing denied May 10, 1917.

Statement of the Case.

Action by the Bass Foundry & Machine Company, plaintiff, against Sulzberger & Sons Company, defendant, to recover the contract price of two water heaters. From a judgment for plaintiff, defendant appeals.

*455Abstract of the Decision.

1. Sales, § 264*—when warranty covers sufficiency of specifications. In an action to recover the contract price of two water heaters, where the contract provided that the heaters must be guaranteed to contain sufficient square feet of heating surface to heat a required amount of water, and such heaters were operated in connection with the defendant’s boilers for the utilization of exhaust steam to raise the temperature of the water before it was taken into the boilers, thereby effecting a saving of fuel, and, on the heaters being tested, it was discovered that they failed to meet the warranty, held that such warranty covered not only the workmanship and materials, but the sufficiency of the specifications as well, and the heaters having failed to fulfil the warranty, the trial court erred in excluding the defendant’s evidence of recoupment.

2. Sales, § 404 * —what is measure of damages for breach of warranty as to heating efficiency of water heaters. In an action to recover the contract price of two water heaters, where the defendant claimed in recoupment because of the breach of a warranty as to heating efficiency, and the warranty was not fulfilled, held that the measure of the defendant’s damages was the difference between the value of the heaters furnished by plaintiff and the cost of altering the defect to make them conform to the warranty, plus a reasonable compensation for their use for the period of time necessary to make the alterations; but that if the cost of installing an auxiliary heater would be less than the damages as outlined, that method should be adopted in order to minimize the damages.

3. Sai.es—ivhat is effect of change in specifications prior to execution of contract on warranty. In an action to recover the contract price of water heaters, where the defendant contended that such heaters failed to meet the warranty as to heating, held that the mere fact that certain changes were made in the specifications at the request of the defendant, prior to the execution of the contract, did not relieve plaintiff from liability under the warranty.

Adams, Crews, Bobb & Westcott, for appellant.

Musgrave, Oppenheim & Lee, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice McDonald

delivered the opinion of the court.