Menici v. Orton Crane & Shovel Co.

The plaintiff purchased a gasoline operated shovel from the defendant on a conditional sales agreement. After the defendant had sued this plaintiff on certain promissory notes given by him in payment for the shovel the plaintiff brought the present action which is described in the writ as an action of contract or tort. The two actions were tried together before a judge of the Superior Court sitting without a jury. The plaintiff’s declaration, as it was during the trial, alleged in its first count the breach by the defendant of a warranty that the shovel was suitable and fit for excavation,…