Curtis & Co. Manuf'G Co. v. Williams

Decision Date26 February 1887
Citation3 S.W. 517
PartiesCURTIS & CO. MANUF'G CO. <I>v.</I> WILLIAMS.
CourtArkansas Supreme Court

F. G. Taylor, for appellant. J. C. Hawthorne, for appellee.

SMITH, J.

The complaint alleges, in brief, that appellee, at the request of appellant, purchased from it a pair of trucks and eight tram-car wheels, manufactured by appellant; that appellant represented the same to be good, both in quality and workmanship, and that said trucks and tram-car wheels were not good both in quality and workmanship, but were defective, and became useless to appellee, to his damage in the sum of $110. The answer admits the sale of the trucks and tram-car wheels, but denies that appellant represented the same to be good, either in quality or workmanship, and also denies that the truck and tram-car wheels were defective, and alleges that appellee used the same several months, and did not make any complaint, or notify the appellant of any defects; that appellant did not know that appellee claimed that any of the articles were defective until after suit was brought for the purchase money.

H. H. Williams, the plaintiff, in substance, testified: "In August, 1883, I commenced to correspond with appellant in reference to tram-car wheels and trucks. In October it shipped me a heavy pair of trucks, that were too heavy for the purpose for which I purchased them. An agent of appellant was down, and informed me that they were getting up a new kind of tram-car wheels and trucks. I informed him of the kind I wanted; and, upon the agent representing that they could fill the order, and their machinery was adapted to use on my tram-road, gave an order for a set of tram-car wheels for the axles that had been shipped with the heavy wheels; also gave an order for three eight-wheel tram-car wheels and axles. In October, 1883, I received the goods, and commenced to use the tram cars then soon. Sent truck-wheels out to be used, and, on learning that they were not in use, made an examination, and tried to use them. The hubs were so irregular that in making a revolution they would run off the track. Had no way of making them smooth. In the fall I went to St. Louis, and advised appellant that I could not use the wheels, and that I would return them. Appellant said they would not be worth anything to it. About sixty days after I commenced to use the tram cars, the wheels on the axles of one became loose. I tightened them up several times. It was on account of defect in pressing them on the axles that caused them to come off. I paid $140 for the eight wheels and four axles that came loose, and think their value was depreciated $80; that is, they were worth $80 less by reason of the defect. Paid $24.80 for the truck-wheels that proved worthless. Gave my acceptance for the machinery, and renewed same two or three times. May 4, 1884, agent of appellant came down. I showed him defective car-wheels, and asked a set-off. Suit was commenced soon afterwards. I did intend to file a counter-claim, but had given two notes, and could not remember for certain which note included the purchase money of the defective machinery. The reason I did not ask at once to be allowed a credit for the defective machinery was that I was owing them a considerable bill, and supposed, when we made final settlement, they would allow me a proper credit. Was on good terms with appellant, and dealt with it to the extent of ten or twelve hundred dollars. The other two cars that I purchased and paid $140...

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