Egan Co. v. Johnson

• Citation: 2 So. 302,82 Ala. 233
• Parties: EGAN CO. v. JOHNSON AND ANOTHER.
• Decision Date: 24 May 1887
• Court: Alabama Supreme Court

2 So. 302

82 Ala. 233

EGAN CO. v. JOHNSON AND ANOTHER.

Supreme Court of Alabama

May 24, 1887

Appeal from circuit court, Tuscaloosa county.

Action on promissory note.

This action was brought by the Egan Company against W. G. and L W. Johnson, to recover of them the amount of a note which they had given in part payment of a planing-machine purchased by them of plaintiff. The complaint is upon said note and contract in it, to which the common counts are added, and the plea was the general issue. The testimony tended to show that defendants went from Coaling, Alabama, their place of business, to Chattanooga, Tennessee, in order to purchase a planing-machine. At the latter place they called upon one Kirk, of the Kirk Machine Company, agent for plaintiff, who was a corporate citizen of Ohio. Said Kirk exhibited a catalogue of plaintiff's machines to defendants, and they ordered "the machine noted on page 13 of the Egan Company Catalogue as No. 4 Double Cylinder Excelsior Planer and Matcher, as therein described." During the same day this order was given, Kirk informed defendants that plaintiff could not furnish the No. 4 machine ordered as speedily as desired, whereupon said order was destroyed, and defendants ordered "one No. 5 planer and matcher, heavy pattern *** as described in Egan & Co. Catalogue." Said defendants having returned to Coaling, they were informed by letter that the No. 5 machine could not be supplied as speedily as desired, and recommended that a No. 6 be taken in its place. To this W. G. Johnson answered: "I will take planer No. 6, as per your catalogue, for $775." Said Johnson paid on said machine, before it was shipped, $500 and forwarded the note for $275, the balance, which is the note in suit. Said W. G. Johnson was the purchasing party and L. W. Johnson his surety on said note. Said defendants desired to purchase a double cylinder machine, and so stated, and the No. 4 was such a machine, but neither defendants nor said Kirk noticed when the order was changed to No. 5, and afterwards to No. 6, that they were single cylinder machines. When the machine arrived at Coaling, the mistake was noticed, and Kirk notified of it. Johnson was informed that another cylinder could be put upon the machine, at extra cost; his machine then being a No. 7, according to the catalogue. This was not done. On March 11, 1885, W. G. Johnson wrote to Kirk that he had sold said machine to L. W. Johnson. The testimony on behalf of defendants tended to show that said machine was not worth to them more than the $500 already paid by them; and on behalf of plaintiff that it was cheap in the market at the contract price, $775.

The plaintiff, in writing, requested the court to give the following charges, which the court declined to do, and to which action of the court plaintiff excepted: "(1) The jury are charged that if they believe from the evidence that the machine in question was bought by W. G. Johnson, and that said W. G. Johnson sold the machine to L. W. Johnson, then this is such an unmistakable act of ownership that they may hold it to be an acceptance and ratification of the contract. (2) If the jury believe from the evidence that some objection was made to said machine when it was first received, but that afterwards the defendant wrote to said plaintiff, or his agent, asking for indulgence in the payment of said note, but promising to pay therefor as soon as possible, then this would be such a ratification of the contract as to authorize the jury to hold the defendants liable in this case. (3) Although when a vendee receives property on which he has made a payment, and it is discovered the property is not exactly what was ordered, he has the right to retain the same to make himself whole, yet he must not put it to such use as will prevent its return, if demanded, nor use it at such a place and in such a manner as to depreciate its value."

The defendants had judgment in the court below, and the refusal to give the above charges are assigned as error.

Wood & Wood, for appellant.

Martin, McEachin & Foster, contra.

STONE C.J.

For the purposes of this appeal we may test the case made by the record as a contract of sale to Johnson by the Egan Company of a piece of machinery manufactured by the latter. The defense is that the machinery was less complete, and therefore less serviceable, than the machine contracted for would have been. No intentional wrong is or can be imputed to the manufacturer. The imperfection which gave rise to this contention must be ascribed to the oversight and mistake of plaintiff's agent, the Kirk Machine Company, through which the sale was negotiated. That both Johnson and the Kirk Machine Company were under a mutual mistake as to what the machine should be capable of doing is proved beyond contention. That the Egan Company was ignorant of this mistake we have no authority for questioning. The note however, on which the action is founded, stipulates that the machine for which it was given, (it was a planing-machine) should be what is known as a double surfacer; that is, that it should plane the two surfaces, bottom and top, at one and the same time. The machine sent planed but one...