Schmidt v. Schabow

As appears from the foregoing, the case was tried upon the theory that the defendant was or was not guilty of negligence in his failure to place enough oil in the crankcase for the proper operation of the motor. The case should not have been tried upon that theory. When the plaintiff requested the defendant to fill her crankcase and the defendant undertook to do so they assumed the relationship of contractors. If the defendant failed to do so his failure was a breach of the contract, whether it resulted from his negligence or otherwise.

This court has upon some occasions, not too frequent,…