City of Bardwell v. Southern Engine & Boiler Works

• Decision Date: 05 November 1908
• Citation: 113 S.W. 97
• Parties: CITY OF BARDWELL v. SOUTHERN ENGINE & BOILER WORKS.
• Court: Kentucky Court of Appeals

113 S.W. 97

CITY OF BARDWELL v. SOUTHERN ENGINE & BOILER WORKS.

Court of Appeals of Kentucky.

November 5, 1908

Appeal from Circuit Court, Carlisle County.

"To be officially reported."

Action by the Southern Engine & Boiler Works against the city of Bardwell. Judgment for plaintiff. Defendant appeals. Affirmed.

J. M Nichols & Son, for appellant.

John E Kane and W. H. Biggs, for appellee.

CARROLL J.

In June, 1905, the appellant city of Bardwell purchased from appellee an engine to be used in operating its electric light plant. It contracted to pay for the engine $1,550. Six hundred dollars of this amount was paid in cash, $450 in an old engine, and for the remaining $500 the city executed its note due in June, 1906. The note, as well as the contract contained the stipulation that the city had received the engine from the Southern Engine & Boiler Works "with the express agreement and understanding that the title of said machinery is now and shall remain in the said Southern Engine & Boiler Works until the note is paid in full; and it shall have the right in case of nonpayment at maturity of said note, or at any time it deems itself insecure, or if the property is sold or removed from the district where located, to enter and retake immediate possession of said property wherever it may be and remove the same." The contract also contained the following guaranty: "The material and workmanship entering into the construction of this engine shall be first class in every respect, and any defective part will be replaced by us without charge. We also guarantee this engine to run smoothly with close regulation under varying loads and steam pressure and to be as economical in the use of steam as any engine of its class." Failing to pay the note at maturity, the appellee instituted this action against the city. It asked for judgment for its debt, interest, and costs, and that it be adjudged a lien on the engine to secure the payment of the same. To this petition the city answered that the engine was not constructed of first-class material, but that much of the material entering into its construction was defective in many respects, and also alleged that the workmanship was inferior, and that, by reason of these defects, the engine was not worth over $500 when delivered to the city. It made its answer a counterclaim, and asked that the note sued on be canceled, and that it have judgment over against the company for $550. To this pleading the engine company replied that it had repeatedly offered to fully perform its guaranty by replacing without charge any defective or inferior parts, but that the city had refused to permit it to do so, and it renewed its offer to fully perform its contract obligation. A rejoinder was filed by the city, in which it stated that it was willing to accept such an engine as the company warranted the engine purchased to be, but that, if the company would not do this, then it offered to rescind the contract, providing the company would return to it the $1,050 paid on the purchase price and surrender the note sued on. Subsequently the city filed an answer, setting out that at the time the contract was entered into, and the note sued on executed, it was indebted largely in excess of the constitutional limit as fixed in sections 157 and 158 of the Constitution, and that the indebtedness assumed in the purchase of the engine was unauthorized and the note executed as evidence of it void. The case, after being prepared for trial, was submitted to the court, and a judgment rendered in favor of the engine company for the amount of its note and interest; and it was further adjudged that, to secure the payment of the same, it had a lien upon the engine. Of this judgment the city complains.

In respect to the question that the city had no authority to purchase the engine because its indebtedness at the time exceeded the limitation provided in the Constitution, we may say that the evidence indicates that the contention of the city upon this point is correct. So that we will consider the case as if the city had no authority to buy the engine or create any indebtedness for that purpose.

Upon the issue presented as to whether or not the engine fulfilled the guaranty, the evidence is conflicting. Indeed, the weight of it tends to support the conclusion that the engine in some particulars, especially in material, was not what it was guaranteed to be. The engine was installed as a part of the electric plant in July, 1905, and the evidence shows that it operated the plant continuously from the time it was installed until the last depositions in the case were taken in the summer of 1907. Presumably the city as it superseded the judgment is yet using the engine for the purpose for which it was bought. Soon after the engine was installed, the city notified the engine company that the engine was not rendering satisfactory service, and pointed out several defects in its material and construction. In response to this letter, the company sent one of its agents to inspect the engine. After making an inspection, he reported to the company that the engine fully came up to the stipulations contained in the contract, and that he found no defects either in material or construction, although a number of witnesses who testified for the city, some of them being experienced machinists, were able to discover defects in both these particulars. It may, however, be here remarked that the defects in material or construction, although causing some inconvenience and annoyance, as well as additional expense, did not seriously interfere with the running of the engine, or prevent it from performing the work it was desired it should do. Subsequent to this, and before the institution of this action, in October, 1906, considerable correspondence passed between the city and the company in respect to other indebtedness of the city to the company, and also concerning the engine. Finally, in June, 1906, for the purpose of definitely ascertaining whether or not the engine fulfilled the contract, it was agreed between the city and the engine company that two experts, one to be selected by each of the parties, should examine the engine and report the result of their inspection. The correspondence between the parties leading up to the selection of these experts clearly shows the attitude of the engine company. In July, 1906, it wrote to the city that it was perfectly willing to make good any defects that existed in the engine, and offered to send an experienced and competent machinist to examine it and supply any defects, and stay with it until the city was satisfied that it was the kind of an engine the city bought. It further wrote that it sold the Coyliss engine to be in first-class condition, and that was the kind it proposed to make it if it was not such. In reply to this, the city wrote that it wished to have a competent man go over the machinery with the expert from the company, and agreed to abide by what this man reported. In July, 1906, these experts met and inspected the engine. At this time it had been in use by the city for about one year.

The expert selected by the city reported to it as follows "As requested by Mr. Ponder, a member of your board, I made an examination of the Coyliss engine at electric light plant at Bardwell, Ky. I found...