Bradley Gin Co. v. J. L. Means Machinery Co.

• Decision Date: 28 February 1910
• Citation: 126 S.W. 81
• Parties: BRADLEY GIN CO. v. J. L. MEANS MACHINERY CO., Limited.
• Court: Arkansas Supreme Court

126 S.W. 81

BRADLEY GIN CO. v. J. L. MEANS MACHINERY CO., Limited.

Supreme Court of Arkansas.

February 28, 1910.

Appeal from Circuit Court, Lafayette County; J. M. Carter, Judge.

Action by the J. L. Means Machinery Company, Limited, against the Bradley Gin Company. Plaintiff had judgment, and defendant appeals. Affirmed.

Warren & Smith, for appellant. Searcy & Parks, for appellee.

FRAUENTHAL, J.

This was a replevin suit instituted by the plaintiff below, J. L. Means Machinery Company, Limited, against the Bradley Gin Company, to recover the possession of certain gin machinery. On June 16, 1906, the plaintiff sold and delivered to the defendant the gin machinery involved in this suit under a written contract; and for the purchase money the defendant executed three notes. In these notes it is expressly provided that the title to said machinery was retained in the plaintiff until the payment of the notes. The written contract of sale amongst other clauses contained the following provisions: "Services of Men. It is hereby expressly understood that if the J. L. Means Machinery Company, Ltd., furnish a man to superintend the erection of above machinery, or should * * * need the services of a man for any purpose from the factory I agree to pay to the said J. L. Means Machinery Company, Ltd., the sum of $4.00 per day, and board their men while at work on the job, and also to pay his railroad fare to and from Shreveport, La., to place of erection of above machinery; I also agree to furnish all material for erection of said machinery not stipulated in this contract, and to furnish said superintendent with all help he may demand to erect above-named machinery with dispatch. * * * The purchaser agrees to properly put up and operate the machinery according to the printed directions furnished by the manufacturers, and that if the fault be traceable to not putting up or operating according to printed directions purchaser agrees to pay all expenses incurred in rectifying it. * * * We, the undersigned, hereby certify that the foregoing contract is an exact copy of the agreement between us, and that the plans and specifications are accepted by both parties to this contract. It is distinctly understood between us that no agreement, verbal or otherwise, will be recognized unless specified in this contract, which includes warranty on back hereof." Upon the trial of the case the written contract and notes were introduced in evidence. The defendant paid the first maturing note, and, upon its failure to pay the other two notes after their maturity, the plaintiff instituted this suit.

The defendant in its answer alleged as a defense and on the trial of the case offered evidence to prove the following: That the machinery was sold to defendant for the price of $1,931.35; that it was purchased for the purpose of ginning cotton of the crops of 1906 and sold by plaintiff for that purpose; that at the time of the purchase the defendant was not familiar with the manner of erecting the machinery for the purpose of operation, and the plaintiff at the time of entering into the contract agreed to furnish a man from its factory to superintend the erection of the machinery; that, in pursuance of said agreement and understanding, the defendant relied upon plaintiff to furnish the man to superintend the erection of the machinery, which was known to plaintiff; that plaintiff failed to furnish a man to erect the machinery, and by such failure the defendant was unable to put the machinery in operation for the season of 1906, and thereby it sustained damages in the sum of $2,000, and it asked in its answer that the pleading be taken as a cross-complaint, and that it have judgment for said damages. The court refused to permit the introduction of said evidence and sustained a demurrer to the paragraph of the answer setting up the above defense. A judgment was rendered in favor of the plaintiff for the recovery of the property or its value; from which judgment the defendant prosecutes this appeal.

The sole question involved in this case is whether or not the parol evidence offered by defendant that the plaintiff had agreed to furnish a man to erect the machinery was admissible; for, if that...