C. B. Ensign & Co. v. Coffelt

• Decision Date: 24 May 1915
• Docket Number: (No. 3.)
• Citation: 177 S.W. 735
• Parties: C. B. ENSIGN & CO. v. COFFELT.
• Court: Arkansas Supreme Court

Page 735

177 S.W. 735

C. B. ENSIGN & CO. v. COFFELT.

(No. 3.)

Supreme Court of Arkansas.

May 24, 1915.

Appeal from Circuit Court, Benton County; J. S. Maples, Judge.

Action by C. B. Ensign & Co. against R. L. Coffelt. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

E. P. Watson, of Bentonville, for appellant. McGill & Lindsey and Rice & Dickson, all of Bentonville, for appellee.

McCULLOCH, C. J.

This is an action instituted by appellant against appellee to recover the price of a lighting plant, which was installed in appellee's country residence in Benton county, Ark. The transaction occurred in the year 1908. A. S. Phelps, Jr., doing business at Elkhart, Ind., under the name of New England Manufacturing Company, was engaged in manufacturing, selling, and installing gas lighting plants for private use, called the "Phelps' Carbide Feed Gas Generator," and through his agent, one E. P. Roberts, sold an outfit to appellee and installed it in his residence. Appellee signed a written order to Phelps for the outfit, which order contained specifications and stipulated the price of $225, to be evidenced by two notes payable in 18 months. Phelps installed the plant, and when the installation was complete Roberts executed to appellee, in the name of his principal, a written guaranty in the following form:

"We hereby guarantee for one year the Phelps' carbide feed acetylene gas generator as follows:

"Made in workmanlike manner and of substantial material in accordance with the National Board of Underwriters' requirements. Will diffuse light equal to sample exhibited.

"The laboratory test yield per pound of carbide is five cubic feet of gas.

"The lighting capacity depends upon the size and number of burners used.

"Cost of carbide is $3.75 per cwt. or $70.00 a ton, at the Union Carbide Co.'s warehouse in every state.

"If same don't do as this guaranty calls for, we agree to take out plant without cost to Mr.

                Coffelt.         New England Mfg. Co
                                        "By E. P. Roberts
                

"Chicago, Illinois, March 6, 1908."

The whole of the above writing was according to a printed form furnished to Roberts by his principal, except the last clause, which was inserted by Roberts in his own handwriting and, according to the evidence in the case, without any specific authority from his principal to do so. Negotiable promissory notes were executed by appellee to Phelps on the same date that the above guaranty in writing was given, and Phelps transferred the notes before maturity to appellant, and the latter instituted suit thereon; but it was adjudged in that case that the article sold was "a patented machine, implement, substance, or instrument," and that as appellee's notes were not executed upon a printed form showing the true consideration in accordance with the terms of the statute, the same were void. Ensign v. Coffelt, 102 Ark. 568. Phelps thereupon assigned to appellant the original cause of action, which constituted the consideration for the notes, and he instituted the present action thereon. Appellee alleged in his answer that Phelps' agent, in making the sale of the lighting plant to him, agreed that the same should be taken on trial by appellee for a period of 18 months, and that if it did not diffuse light up to the standard of the sample which was exhibited or should in any other way fail to give satisfaction, the seller would take out the plant and release appellee from all obligation to pay the price. The answer further alleges that the outfit failed to furnish light in accordance with the guaranty, and that appellee gave notice thereof to Phelps and tendered the plant back to him. The trial of the case before a jury resulted in a verdict in appellee's favor, from...