Florence Wagon Works v. Trinidad Asphalt Mfg. Co.

• Decision Date: 18 January 1906
• Citation: 40 So. 49,145 Ala. 677
• Parties: FLORENCE WAGON WORKS v. TRINIDAD ASPHALT MFG. CO.
• Court: Alabama Supreme Court

40 So. 49

145 Ala. 677

FLORENCE WAGON WORKS v. TRINIDAD ASPHALT MFG. CO.

Supreme Court of Alabama

January 18, 1906

Appeal from Circuit Court, Lauderdale County; E. B. Almon, Judge.

"Not officially reported."

Action by the Trinidad Asphalt Manufacturing Company against the Florence Wagon Works. From a judgment in favor of plaintiff defendant appeals. Reversed.

John T Ashcraft and Kirk, Carmichael & Rather, for appellant.

Simpson & Jones, for appellee.

HARALSON J.

The action was to recover of the defendant, the Florence Wagon Works, $490.53 due April 30, 1901. There being no dispute as to the sum due, the only defense was a set-off growing out of sale which had been made by the plaintiff, the Trinidad Asphalt Manufacturing Company, in August, 1899, the defendant claiming that the goods then sold, were warranted to be of a certain quality, and that they failed to come up to the quality warranted, to its damage $1,200.00.

The defense set up in some of the pleas was that of an actual warranty, but another plea, the eighth was added, setting up an implied warranty.

A. D Bellamy, who was president of the defendant company, testified without objection that in August, 1899, his company was arranging to put a new roof on its main building, which was about 300X150 feet, and also, on one side of its paint-shop roof; that Mr. Hargrove, the local representative of the plaintiff company, called on him, and witness told him that as the job was a large one, and he had had so much trouble with the roof, he thought it best to have the regular representative of the plaintiff come to Florence so he could deal direct with the company; that afterwards Mr. Bulkley (who was the agent of the plaintiff) called with Mr. Hargrove to see him at the office of the defendant; that witness went over the roofing question with Mr. Bulkley, and explained to him that his company had had a great deal of trouble in getting a good roof, showed him the buildings on which the roof was to be laid, and told him that witness did not want to purchase unless he was sure to get a first-class roof which the seller would warrant for at least five years; that Bulkley recommended plaintiff's ready rocksilica roofing, 5 ply; that this roofing was first-class asphalt roofing in every particular;" "that he would not warrant it for five years, but that he would warrant and did warrant it for three years. He argued that the first three years was the test of the roof, and if it stayed for three years, it would probably last ten years or more; that defects in the roof, if there were any, would be developed within three years, and that the three years warranty was just as good as a five year warranty;" that witness then told him that if his roofing was first-class asphalt roofing, and he would warrant it for three years, witness would place the order with him at the price he offered, and then witness signed the following orders: "Aug. 21, 1899. Please ship the Florence Wagon Works, at once, at Florence, Ala., terms four months, with 6 per cent. interest after sixty days, delivered F. O. B., Florence, Ala., payable in St. Louis, Chicago or New York exchange, 374 rolls ready rock silicia roofing, 5 ply per--square, $2.35. This order is not subject to cancellation. Signed, Florence Wagon Works, A. D. Bellamy, G. Mng., salesman, M. J. Bulkley." A like order, of the same date and in the same words as above, was signed for 88 rolls, to be paid for when put on building, within four months.

The written orders for the materials did not contain a warranty, it is true, but they did not exclude a warranty, which the evidence abundantly establishes was made by the plaintiff, through their agent, Bulkley, whom they sent out specially at defendant's request, to deal with them. He was armed with the authority to make the contract and warranty and to receive the orders. No objection was raised to his statements as to his acting for the company, nor as to his authority to act.

The rule of damages...