Ewing-Merkel Electric Co. v. Lewisville Light & Water Co.

• Decision Date: 13 December 1909
• Citation: 124 S.W. 509
• Parties: EWING-MERKEL ELECTRIC CO. v. LEWISVILLE LIGHT & WATER CO.
• Court: Arkansas Supreme Court

124 S.W. 509

EWING-MERKEL ELECTRIC CO. v. LEWISVILLE LIGHT & WATER CO.

Supreme Court of Arkansas.

December 13, 1909.

Appeal from Lafayette Chancery Court; J. M. Barker, Chancellor.

Action by the Ewing-Merkel Electric Company against the Lewisville Light & Water Company. From a decree for defendant, plaintiff appeals. Affirmed.

T. M. Pierce, Paul U. Farley, and Bradshaw, Rhoton & Helm, for appellant. Warren & Smith, for appellee.

BATTLE, J.

The Ewing-Merkel Electric Company, a corporation organized under the laws of the state of Missouri, sold to the Lewisville Light & Water Company, a corporation organized under the laws of the state of Arkansas, an alternating current generator complete and switch board transformers for an electric light plant for $1,150, all secondhand machinery, but guaranteed to be in strictly first-class order and in good operative condition. The sale was made under a written contract dated May 10, 1904. The Lewisville Light & Water Company purchased of the Ewing-Merkel Electric Company sundry items of merchandise between July 1 and October 1, 1904, amounting to $488.04, and on the 5th of October, 1904, paid thereon $300, leaving a balance of $188.04.

On the 13th day of July, 1905, the Ewing-Merkel Electric Company brought an action against the Lewisville Light & Water Company in the Lafayette circuit court for $188.04.

The defendant answered and admitted that it purchased the merchandise mentioned in the complaint, and that the sum of $188.04 remains unpaid, "but by way of set-off and cross-bill defendant states: That on the 10th day of May, 1904, it entered into a contract with plaintiff for the purchase of certain goods, machinery, and material for an electric light plant.

"That the said machinery and appliances were guaranteed to be in strictly first-class order as set out in the complaint, and defendant agreed to pay the sum of $1,150, and plaintiff guaranteed the machinery to be in good operative condition. That plaintiff knew at the time of the contract of purchase that defendant desired to use them solely for the purpose of operating an electric plant, and guaranteed it to be in first-class order for that purpose. That defendant bought and paid for said machinery relying solely upon plaintiff's representations and guaranty as to its quality and condition. Defendant was inexperienced in the matter of such machinery which plaintiff knew, and defendant relied on plaintiff's representations.

"That after defendant had installed said machinery it was found to be defective and unsound and not in strictly first-class order, nor in good condition. The armature in the generator was worthless and burned out, and the insulation rotten and the machinery utterly worthless for the purpose of the defendant.

"That because of the defective condition of the machinery it was not worth more than $100, and the defendant had been damaged in the sum of $1,050.

"The plaintiff is a nonresident of the state and has no agent upon whom service can be had, nor any property in the state, and that it has no adequate remedy by law, and prays for the recovery of the damages, and asks that the cause be transferred to the chancery court of Lafayette county for hearing, and prayed for judgment."

On October 9th, in the chancery court, the defendant filed an amendment to its answer and cross-bill, as follows:

"That the exciter purchased from plaintiff failed to excite the fields and armature thus rendered it impossible to operate the said machine.

"The bearings on the dynamo were worn and rubbed, and caused the boxes to heat so that it was impossible to operate the machinery. The transformers were not in first-class order nor in good operative condition, but were worn and worthless."

On motion of the defendant the cause was transferred to the Lafayette chancery court The plaintiff answered the cross-complaint of the defendant and denied the allegations.

Much evidence was adduced by both parties, and the court found upon hearing that plaintiff is a nonresident and has no property in this state, that the defendant is indebted to plaintiff on the account sued on in the sum of $188.04, and that the plaintiff is indebted to the defendant "on account of damages for breach of warranty in the contract for the sale of machinery and appliances, as alleged in the defendant's answer...