Ash v. International Harvester Co

• Decision Date: 20 May 1912
• Court: Mississippi Supreme Court
• Parties: ED. ASH v. INTERNATIONAL HARVESTER CO

58 So. 529

101 Miss. 542

ED. ASH v. INTERNATIONAL HARVESTER CO

Supreme Court of Mississippi

May 20, 1912

October 1911

APPEAL from the circuit court of Wilkinson county, HON. M. H WILKINSON, Judge.

Suit by Ed. Ash against the International Harvester Company of America in which defendant filed a cross-action. From a judgment for defendant in the principal action and for plaintiff in the cross-action, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Shannon & Jones, for appellant.

In this case, it would be exceedingly difficult to find a material point upon which the judgment ought not to be reversed.

Plaintiff paid one hundred and forty-three dollars freight on an engine, shipped in his name by defendant, with which engine defendant came, and which defendant set up and tried to run which failed to run and was abandoned by defendant on plaintiff's lot, without ever tendering it to him.

It sat there on plaintiff's lot, for about two years, under a shelter of tarpaulins furnished by plaintiff, who also greased and oiled it, and took such care of it as he could but never used it nor tried to use it, nor was ever authorized to do so.

He proves the value of the storage, yet the court says he is entitled to nothing, neither for freight nor storage. We have to do some wild guessing to imagine how this conclusion was reached.

That defendant agreed to pay seventy-five cents per hundred weight, for freight, if it complied with its contract, shows clearly; that if plaintiff owed nothing on the engine, that seventy-five cents per hundred weight should have been allowed. But if plaintiff was not compelled to take the engine, and owed nothing on that, how on earth could he have been made to pay the freight? If he owned no interest in the engine, and never even had it tendered to him, how could he possibly be required to furnish two years storage gratis?

The conditions of the contract do say something about if the engine fails to work, the defendant refunds the purchase money and that ends it, but:

1st: The freight was a part of the purchase money under the contract.

2nd: That condition means only that no damages shall be recoverable.

3rd: The seventy-five cents per hundred weight was exigible.

4th: The contract was never performed by defendant, and no engine was ever accepted by, nor delivered to nor tendered to plaintiff.

5th: The contract is improperly in evidence.

It seems to us that it would be arrant nonsense to cite authorities in this case, and it is respectfully submitted.

Bramlett & Tucker, for appellee.

There was a written contract for the purchase of an engine, but the appellant sued appellee for freight and storage on the engine, and not upon the contract nor any breach thereof, which is all that appellee could possibly be liable for, for the contract did not require appellee to repay appellant any freight paid by him, but only to allow the amount of freight so paid and agreed as a credit on the contract price of the engine. Nor was there the semblance of liability upon appellee to pay appellant storage.

The appellee's pleadings set out the contract for the purchase of said engine, and on the trial of said case the original contract was introduced in evidence by appellee and marked exhibit "B." The contract clearly shows that the engine was purchased by Ash in Chicago and that he expressly agreed to pay freight on the...