Adams Machine Company v. Thomas

• Decision Date: 15 January 1906
• Citation: 87 Miss. 391,39 So. 810
• Court: Mississippi Supreme Court
• Parties: ADAMS MACHINE COMPANY v. ALEXANDER C. THOMAS

39 So. 810

87 Miss. 391

ADAMS MACHINE COMPANY v. ALEXANDER C. THOMAS

Supreme Court of Mississippi

January 15, 1906

November 1905

FROM the circuit court of, first district, Chickasaw county, HON EUGENE O. SYKES, Judge.

The Adams Machine Company, appellant, was the plaintiff in the court below; Thomas, the appellee, was defendant there. From a judgment in favor of the defendant the plaintiff appealed to the supreme court.

To the declaration of the plaintiff, based upon promissory notes given for an engine and boiler, defendant filed the following plea:

"And for further plea in this behalf defendant says that, prior to the execution of the contract and notes in the plaintiff's declaration set forth, the plaintiff, by its superintendent, Robert Adams, and W. T. Adams and others duly authorized thereto, offering to sell to the defendant the engine and boiler and other property mentioned in said contract and notes, did then and there warrant and represent that the said engine and boiler were comparatively new, and in fact as good as new, and had not been run and used more than about three months, and that said engine, with all of the attachments mentioned in the contract, was in good working order and worth the actual cash value of $ 835; that the defendant, relying upon said warranty and representations, then and there purchased said engine and boiler and all other property mentioned in plaintiff's declaration for the sum of $ 835, and entered into and signed and delivered said contract and notes, as set forth in the declaration; that said engine and boiler, at the time of said warranty and sale, were not comparatively new, nor as good as new, and had not been in use only about three months, as represented and warranted, but, on the contrary, the said engine and boiler were old and in bad condition, and had been in use and operation for many years; that said engine and boiler and other property mentioned in said contract and notes are worth $ 500 less than they would have been if said engine and boiler had been as represented and warranted by the plaintiff; that by reason of the premises the defendant has been damaged $ 500, which he asks to be set off against the amount, if any, which plaintiff may prove in his favor on the trial of this action. And this he is ready to verify."

The plaintiff filed the following demurrer to defendant's said plea:

"Now comes plaintiff in this cause and demurs to so much and such parts of defendant's special plea as seek to set off certain amounts against plaintiff's demand, for the reason that such damages as are alleged in such special plea are unliquidated."

The court gave the following instruction at the request of the defendant:

"The court instructs the jury that if they believe from the evidence that the plaintiff, through its authorized agent or agents or officers, represented to defendant that the engine and boiler, or either, were comparatively new, or as good as new, and had not been run more than three months, and they further believe that the engine or boiler was not comparatively new, or as good as new, or as represented,...