Georgia Marble Co. v. Standard Tile Co., 5.

• Decision Date: 13 April 1935
• Docket Number: No. 5.,5.
• Citation: 86 S.W.2d 429
• Parties: GEORGIA MARBLE CO. v. STANDARD TILE CO.
• Court: Tennessee Supreme Court

Page 429

86 S.W.2d 429

GEORGIA MARBLE CO. v. STANDARD TILE CO.

No. 5.

Court of Appeals of Tennessee, Eastern Section.

April 13, 1935.

Certiorari Denied by Supreme Court October 12, 1935.

Appeal from Chancery Court, Hamilton County; J. L. Foust, Chancellor.

Suit in equity by the Georgia Marble Company against the Standard Tile Company, in which the defendant filed a cross-bill. From the decree, the defendant appeals.

Affirmed.

Williams & Williams, of Chattanooga, for appellant.

Noone & Ziegler, of Chattanooga, for appellee.

AILOR, Judge.

Complainant filed its original bill in the chancery court of Hamilton county for the purpose of collecting the sum of $712.35 claimed to be due it under a written contract, which was filed as an exhibit to the bill. This contract specified that complainant agreed to furnish interior marble for fifty-six showers for Army quarters at Fort Benning, Ga. Material to be shipped unboxed, but well packed and braced in car. The company further agreed to furnish marble for additional showers as above at an additional charge of $85 each, F. O. B. plant, freight allowed to Fort Benning, Ga. The price for the marble delivered, F. O. B. cars as specified, was to be $4,420. And the contract stipulated that no hardware was to be included in the contract.

Defendant, Standard Tile Company, filed an answer and cross-bill, in which it set out that it had paid in full for all marble shipped to it by the complainant. It insisted that it had been caused to lose considerable money by reason of misrepresentations made to it by the complainant in that the representation had been made to it that bolts for installation of the marble supplied by complainant could be purchased from the Pocono Metal Manufacturing Company; that it relied upon such representations which were false, and had been forced to purchase bolts for use from Columbus Brass Company at a much higher price than that given to it by the complainant; that the complainant was justly indebted to it approximately $581.75, less a credit of $188, or a balance of $393.75, to cover the cost of the bolts ordered from the Columbus Brass Company, less the cost of the bolts ordered from the Pocono Metal Manufacturing Company and express charges on same.

Complainant and cross-defendant filed its answer to the cross-bill, setting up its contract to furnish marble of a stipulated amount for $4,420; that it furnished one additional shower at the contract price of $85, or a total contract amount of $4,505; that defendant and cross-complainant did not furnish it with freight invoice until February 4, 1932, when credit was entered in its favor for the amount of same, $116.73; that the amount sought by the original bill in the cause was the net amount due after the allowance of said credit for freight paid by defendant; that upon the request of cross-complainant it purchased bolts from Columbus Brass Company for which it paid 75 cents each to the amount of $470.25, and charged cross-complainant 84 cents each, or a total of $526.68; that it shipped defendant marble over and above the amount set out in the contract aggregating $302.40, leaving a balance due after deducting the express charges of $712.35.

Upon the trial of the cause the chancellor granted complainant a decree for the sum of $655.92, being the amount paid by it to the Columbus Brass Company for bolts in the amount of $470.25, marble reworked by complainant in the amount of $254.15, and extra marble furnished in the amount of $48.25, or a total of $772.65, less credit for freight charges paid by defendant of $116.73. The defendant's cross-bill was dismissed. From this action of the chancellor in entering a decree adverse to it, defendant and cross-complainant excepted, and has perfected its appeal to this court. It has assigned errors herein.

Defendant and cross-complainant has assigned as error the action of the chancellor in three particulars. For convenience, these will be treated in the inverse order from which they appear. The third assignment is to the effect that there is no evidence in the record to sustain the finding of facts upon which the decree was based. This assignment is more or less formal, and is not urged seriously. It will be treated in connection with the other assignments. It is insisted in the second assignment that the court erred in holding that the Georgia Marble Company was not the agent of appellant in this transaction, and in holding that the Georgia Marble Company had received no consideration for its service in designating the Pocono bolts.

The written contract exhibited with the bill, and sent up in its original form, precludes any idea that complainant was to furnish the hardware necessary for the job in question. The item of hardware was discussed during the negotiations for supplying the marble by complainant, but this was excluded from the contract because defendant labored under the impression that it could get a cheaper price on same than that quoted by complainant in making up the estimate. And as a result of this situation, the estimate of costs of hardware was excluded from the contract as executed. Thereafter, complainant had no contractual obligation toward defendant with reference to the hardware. Thereafter the defendant, having failed to purchase bolts for setting the marble, wrote complainant, inquiring where same could be purchased. In response to this inquiry complainant gave defendant the name of Columbus Brass Company, that being the company from which complainant had previously purchased similar supplies. However, defendant did not order the bolts after getting the name of the company from which they could be purchased. Complainant wrote defendant in this connection as follows: "Replying to your letter of May 11th, requesting additional information on the list of hardware required for above job, which we furnished you, we are enclosing herewith a schedule sheet of this hardware, which we believe will give you the information required." "You will note that we have given two prices for each type of hardware, the lower price being as listed in the Pocono catalogue, and the higher price being the one we used in making up our estimate. These higher prices which we used in making up our estimate were for the purpose of covering the cost of handling, for bolts, transportation charges, etc., which we believe will give you ample coverage for the cost of the hardware requirements. If this does not give you all the information required, please advise us of any other information needed, and we will be very glad to furnish same."

Defendant ordered bolts from the Pocono Manufacturing Company, which it was thought would comply with specifications. However, upon receipt of the bolts, it was discovered that they did not conform to specifications, and that it would be necessary to alter the bolts or rework the marble. Complainant refused to rework the marble, for the reason that it was prepared according to specifications. Thereupon, on October 12th, defendant wrote complainant a letter with the following provision: "With reference to the question of cutting down the seats for the socket bolts, if you will send us the catalog number of the bolts from the Columbus Brass Co., we will secure the proper ones and return the ones we have on hand for credit. Should you have an additional copy of the catalog of the Columbus Brass Co., which you are not using, we would appreciate your mailing it to us." On the following day, complainant wrote in response to this letter, giving the catalogue number of the bolts desired, and informing defendant that it did not have an extra catalogue of Columbus Brass Company...