Caffey v. Alabama Machinery & Supply Co.

• Decision Date: 21 November 1922
• Docket Number: 3 Div. 431.
• Citation: 19 Ala.App. 189,96 So. 454
• Parties: CAFFEY v. ALABAMA MACHINERY & SUPPLY CO.
• Court: Alabama Court of Appeals

96 So. 454

19 Ala.App. 189

CAFFEY v. ALABAMA MACHINERY & SUPPLY CO.

3 Div. 431.

Court of Appeals of Alabama

November 21, 1922

Rehearing Denied April 3, 1923.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by William G. Caffey against the Alabama Machinery & Supply Company for damages, rescission of contract, etc. Judgment for plaintiff in an amount less than prayed for, and he appeals. Reversed and remanded.

Steiner Crum & Weil, of Montgomery, for appellant.

Ball & Beckwith, of Montgomery, for appellee.

SAMFORD J.

There are 201 assignments of error in this record; many, and we may say a large majority, of them might well have been omitted. The multiplication of assignments of error tend to mystify rather than to make clear, the real questions at issue.

The original suit grew out of a sale by the defendant to the plaintiff of certain machinery designed to be used by the plaintiff in the manufacture of syrup, from sorghum cane. The plaintiff was ignorant with regard to machinery and of its capacity to do the work desired by him. He applied to defendant to purchase this machinery, informing defendant of his ignorance and of his absolute reliance on defendant to furnish machinery of sufficient capacity and condition to perform the service required, at the same time informing defendant of the sorghum to be ground, the probable output and the time of year, and its duration, in which the sorghum must be ground, to prevent deterioration and loss. The defendant, assuming and representing itself to have a knowledge of these things and of the character of the machinery desired, agreed with plaintiff to furnish such machine, and as a result of the negotiations entered into a written contract, the pertinent parts of which are as follows:

"An agreement made and entered into by and between Alabama Machinery & Supply Company, of Montgomery, Alabama party of the first part, and Wm. G. Caffey, party of the second part, witnesseth, that the said Alabama Machinery & Supply Company agree to furnish the said Wm. G. Caffey the following articles, viz.: One 10"'x12"' Hubar tractor, steam, in good running condition, to be delivered on cars at Ft. Davis, Ala., for the consideration of the payment of ($1,400.00) fourteen hundred dollars, as follows: ($500.00) Five hundred dollars down, the receipt whereof is hereby acknowledged, and the balance in installments, viz. $100 note due September 15th, and $100 every thirty days thereafter until balance paid in full. Notes bearing interest from date of bill of lading, at the rate of 8 per cent., to be given for all deferred payments.

"Alabama Machinery & Supply Company warrant the above described machinery to be of good material and workmanship and to perform in a satisfactory manner when properly used; and should any part of same prove to be defective, Alabama Machinery & Supply Company shall deliver at shipping point a perfect piece of part to replace said defective piece or part. It is understood that no warranty or verbal understanding of any kind exists in regard to the present contract other than what is herein expressly stated. It is understood and agreed that the title to above described property shall remain in the Alabama Machinery & Supply Company until fully paid for."

The tractor was delayed in delivery and when installed was found to be unsatisfactory, in bad physical condition, and of insufficient capacity to do the work designed and after defendant had tried, until long into the season for grinding the sorghum, to put the tractor in condition, it was finally abandoned, and on September 26th plaintiff rescinded the contract of purchase and demanded of defendant payment of the purchase money already paid and a cancellation of the deferred purchase-money notes. As a result of the purchase, and within the contemplation of the parties, the plaintiff expended sums of money for freight and transportation of the tractor to his farm, and for its installation and in efforts to make it do its work, and the delay caused plaintiff loss in the deterioration of his sorghum, by overripeness and drying out.

The foregoing sufficiently states the plaintiff's contentions, except as may hereinafter appear, and does not embrace the contention of the defendant, consisting of contrary evidence making questions of fact, and as to the weight of the one or the other we expressly refrain from expressing an opinion. Under the evidence adduced on the trial and the rulings of the court, the plaintiff was limited in his recovery to the amount of money paid under the counts for money had and received based upon a rescission of the contract and to punitive damages under certain counts claiming for fraud. The plaintiff having recovered the amount paid, with interest, counts 1, 2, and 6, may be eliminated from further consideration. Holloway v. Henderson Lbr. Co., 203 Ala. 246, 82 So. 344.

The first question of any moment that addresses itself to this court is: Can the plaintiff, by proper pleading and averment in the same count based upon a rescission of the contract, claim and recover special damages for expenses incurred incident to and growing out of the contract of sale, before rescission?

It is elemental law that prior negotiations, resulting in a contract which is reduced to writing, are all merged into the written instrument; and it is equally well settled by our decisions that, when a party having capacity to read signs a contract without reading it and without requesting it to be read to him, and no device is used to put him off his guard, he is bound by its terms. 3 Michie's Dig. 310, par. 63. It is also well settled that in certain cases the buyer is entitled, upon acting promptly, to rescind the contract. Where this is the case, and rescission is made, the buyer may recover back whatever part of the purchase price he may have paid. 24 R. C. L. p. 65, par. 331.

This would seem to be the general rule, when, however, it was within the contemplation of the parties at the time of the contract of sale, and the written contract does not preclude such construction, that the buyer should have the right of inspection or of testing the property bought, at the point to which it was to be transported or used, or, as in the case at bar, if at the time of entering into the contract of sale it was within the contemplation of the parties that the tractor should be delivered to the purchaser, f. o. b. the cars at a convenient railroad station (whether at Ft. Davis or Lobman is immaterial), to be transported thence to plaintiff's farm in Lowndes county, before it could be tested as to its sufficiency to comply with the warranty stipulated in the contract, the contract, as between the parties, would remain conditional and executory, until the tractor had reached its destination and received the necessary test. In the very nature of things it was impossible for plaintiff to have tested the tractor until it had been transported to his plantation and connected up with his syrup-making outfit, and until that time the contract was executory. Pierson et al. v. Crooks et al., 115 N.Y. 539, 22 N.E. 349, 12 Am. St. Rep. 831; Eaton v. Blackburn, 20 L. R. A. (N. S.) 53; Hauser & Haines Co. v. McKay, 53 Wash. 337, 101 P. 894, 27 L. R. A. (N. S.) 925.

It follows therefore that, the plaintiff being entitled to rescind on account of a breach of warranty, he should recover, not only the actual amount of money paid defendant on the purchase price, with interest, but such amounts necessarily and reasonably expended by him in transportation and testing the machine, up to and including a reasonable time for such tests, the same being in the nature of a part of the purchase price; it being clearly the intention of parties to the contract that the tractor should be tested at the place where plaintiff was to manufacture his syrup. Pierson & Co. v. Crooks & Co., 115 N.Y. 539, 22 N.E. 349, 12 Am. St. Rep. 831; Chickering v. Bromberg, 52 Ala. 528; Harvey v. Kendall, 2 La. Ann. 748; Berkey v. Lefebure, 125 Iowa, 76, 99 N.W. 710; Kester Bros. v. Miller Bros., 119 N.C. 475, 26 S.E. 115; Phares v. Jaynes Lbr. Co., 118 Mo.App. 546, 94 S.W. 585. So that, in those counts of the complaint based upon a rescission of the contract of sale, upon proper pleading and proof, plaintiff may recover that part of the purchase money actually paid, and by way of special damages, the expense of transportation of the tractor from Lobman to Letohatchie, reasonable expenditure for labor, wood, and materials in moving the tractor from Letohatchie to plaintiff's plantation, and the reasonable expense of installing the tractor and testing same, to such time as the contract was rescinded; but the costs of installing other machinery to take the place of the tractor, and of operating such other machinery, and any loss sustained by and on account of the drying out of of plaintiff's sorghum by reason of delay and the inefficiency of the tractor cannot in any sense be said to be a part of the purchase money of the tractor, and, not being such, cannot be recovered in these counts.

Another phase of the case at bar may be eliminated at this point. Any claims which the plaintiff might have had to a rescission either for breach of warranty or misrepresentation, based upon a delivery at Lobman, instead of Ft. Davis, or on account of delay in delivery of the tractor f. o. b. the cars, were waived by the plaintiff when, with knowledge of the time of delivery, he unloaded the tractor at Letohatchie and transported it to the farm. If he sought rescission for these reasons, he should have...