opinion: GRIFFITH-CONSUMERS CO. v. NOONAN et al.
  No. 8335.
  United States Court of Appeals for the District of Columbia.
  Argued May 6, 1943.
  Decided June 4, 1943.
  Mr. Selig C. Brez, of Washington, D. C, with whom Mr. Colman Brez Stein, of Washington, D. C., W'as on the brief, for appellant.
  Mr. Martin F. O’Donoghue, of Washington, D. C., with whom Mr. Thomas X. Dunn, of Washington, D. C., was on the brief, for appellees.
  Before GRONER, Chief Justice, and EDGERTON and ARNOLD, Associate Justices.
  .ARNOLD, Associate Justice.
  The appellant, Griffith-Consumers Company, installed a boiler for heating purposes on premises owned by the appellees, Trustees of the Estate of John J. Noonan, deceased, under a written contract which contained no. express provisions of warranty. After the boiler was installed it appeared that there was insufficient draft in the chimney to allow it to operate properly. Insufficient heat, excessive coal consumption, insufficient hot water, and noxious gases and fumes have resulted partly from the inadequacy of the boiler, and partly from a failure to complete the installation in a skillful and workman-like manner. The boiler is still on the premises and is still being used for heating purposes, but the estate refuses to pay the balance of the purchase price on the ground that the boiler is unfit for the purpose for which it was installed. Griffith-Consumers Company brought suit for $1483.00, the amount of the unpaid balance. The estate set up a breach of implied warranty as a defense, and also counterclaimed for $2,000.00 damages.
  The trial court found, on what we consider sufficient evidence, that the purpose for which the boiler was to be used had been made known to the seller prior to the contract; that the buyer relied upon the skill and judgment of the seller; that the boiler was installed negligently and did not function adequately; and finally, that it was not fit for the purpose which had been previously disclosed to the seller. Accordingly, the claim for the balance of the purchase price was denied. Since the estate produced no evidence of the amount of damages caused by the breach of warranty, the court dismissed the counterclaim.
  The contract appears to be for the installation of a heating system, rather than for the sale of a boiler. However, under Sub-section (1) of Section 28 — 1115 of the District of Columbia Code (1940), where the buyer discloses to the seller the particular purpose for which the goods are required, and relies on the seller’s skill or judgment, there is an implied warranty that the goods are reasonably fit for that purpose'. Therefore, such an implied warranty arises in this case even if we consider it as coming within the Sales Act.
  The appellant argues that since the appellees still have possession of and are using the boiler, the burden of proof is on them to show the amount of damages for breach of warranty which are to be deducted from the purchase price. This would be true if the breach of warranty related to some minor condition of the contract which could be construed as a condition subsequent. Here, however, the trial court found that the boiler when installed was unfit for the purpose which had been previously disclosed to the seller. This is not a sufficient performance of the contract to entitle appellant to recover the balance due on the contract price. It is not the duty of appellees, under these circumstances, to go to the expense of tearing out an unsatisfactory heating system in order to return the boiler. If the appellant seeks to recover quantum meruit, on the theory that the appellees are using the boiler in spite of its defects, the burden of proof is on him to show its reasonable value under these conditions. Since appellant offered no evidence of the value of the heating system in its defective condition, there can be no recovery on that ground.
  The judgment of the trial court is, thereT fore, affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama