Grasselli Chemical Co. v. City Ice Co.

• Decision Date: 17 May 1917
• Docket Number: 1 Div. 966
• Citation: 75 So. 920,200 Ala. 172
• Parties: GRASSELLI CHEMICAL CO. v. CITY ICE CO.
• Court: Alabama Supreme Court

75 So. 920

200 Ala. 172

GRASSELLI CHEMICAL CO. v. CITY ICE CO.

1 Div. 966

Supreme Court of Alabama

May 17, 1917

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Grasselli Chemical Company against the City Ice Company. From an adverse judgment, plaintiff appeals. Affirmed.

Suit by appellant, the Grasselli Chemical Company, against appellee the City Ice Company of Mobile, to recover the price of certain shipments of anhydrous and aqua ammonia sold by plaintiff to the defendant. The complaint contained only the common counts.

The defendant interposed several special pleas. Pleas 3 and 5 set up an implied warranty that the ammonia was suitable for use in the defendant's ice plant, and alleged that it was impure and unfit for ice-making purposes, thereby causing defendant to suffer great loss because of the consequent decrease in the output of said ice machine, and further alleged that plaintiff well knew at the time of said ice that the defective ammonia would produce such loss and damage. It was shown that the ammonia was sold to defendant under several separate dates from January 22, 1915, to June 7 1915, and that, in effect, all the ammonia was defective. Pleas 3 and 5 were substantially the same, except that plea 5 charged that a material portion of the ammonia embraced in the original shipment and with which the machinery was originally charged was not reasonably suited for the purposes for which it was sold, that the impure ammonia necessarily spread throughout the entire charge in the machine, thus rendering the whole charge--including that subsequently added--unfit for the required purposes, and greatly reducing the ordinary output of ice. Demurrers were interposed to pleas 3 and 5 on the ground that the pleas alleged no facts upon which a warranty that the ammonia sold was reasonably suited to the use and purposes for which it was bought is implied, and upon the further ground that the pleas show that the defendant bought from the plaintiff aqua ammonia and anhydrous ammonia, and alleged no facts showing that the ammonia sold was not merchantable aqua ammonia and anhydrous ammonia. The demurrers were overruled. Plea 6 was as follows:

"The defendant purchased of the plaintiff and the plaintiff sold to the defendant 19,622 pounds of aqua ammonia at the price of $1,079.21, and 1,227 pounds of anhydrous ammonia at the price of $309.20, on, to wit, January 22 1915; and 2,049 pounds of anhydrous ammonia at the price of $516.35 on, to wit, February 11, 1915, and 3,114 pounds of aqua ammonia at the price of $186.84, and 816 pounds of anhydrous ammonia at the price of $228.48 on, to wit, May 5 1915; and 1,589 pounds of aqua ammonia at the price of $95.34 on, to wit June 4, 1915; and 775 pounds of aqua ammonia at the price of $46.50 on, to wit, June 7, 1915. Plaintiff agreed to deliver the said goods at Mobile, Ala., for the prices above named, but by further agreement between the parties, defendant paid freights thereon for transportation to Mobile aggregating $98.13 for which defendant is entitled to credit as a payment on account of the purchase price and leaving unpaid $2,363.79 of the aggregate of the several amounts agreed to be paid for said several purchases. The account or demand sued upon in this cause is for said purchases. Plaintiff expressly warranted all of said anhydrous ammonia to be perfectly pure and dry and all of said aqua ammonia to be absolutely pure 26 degree aqua ammonia. At the time of each of said sales and purchases, plaintiff was informed and well knew that all of said ammonia was being purchased for use by defendant in operating its ice manufacturing plant at Mobile, Ala., consisting of two ice-making machines; that a part of the said ammonia would be charged into one of said machines, and the remainder into the other of said machines; that if any material portion of the ammonia constituting a part of such a charge was impure, such impurities would be communicated to the entire charge of which it formed a part and render the same unsuited and unfit for ice-making purposes, and substantially destroy the value of all of the ammonia in the charge, and also cause further heavy damages because of the material and necessary decrease in the output of defendant's said machine and the sundry delays and expenses incident to attempting to operate such a machine with impure ammonia. Not knowing of the defective and impure condition of the said ammonia, and relying upon said warranty, defendant charged both of its said ice-making machines with the ammonia acquired by the aforesaid purchases made in January and February, 1915, and while the said machines thereafter failed to operate as they should, or to show or develop their usual capacity, defendant, still believing the said ammonia to be pure, and not to be defective, and attributing the trouble to other causes, made the other purchases above shown, and added the ammonia so purchased to the charges then in its machines. A material portion of the ammonia in each of said original charges in truth and in fact was impure and the said impurities were necessarily spread throughout the entire charge in each machine, thus rendering the entire charge, including the ammonia subsequently added, impure and substantially destroying the value of all of said ammonia and greatly reducing the output of defendant's ice-making machines below what such output would have been had said machines been supplied with reasonably pure ammonia. Defendant, without knowing of the said condition of said ammonia and that the same was causing the decrease in the output of its machines and other troubles which it was encountering, operated the said machines for a long period, to wit, four months, while charged with said impure ammonia, during all of which period its said operations were much delayed, impeded, and made more expensive, and the output of

its said machines much decreased, because of the said condition of said ammonia. By reason of the aforesaid condition of said ammonia, defendant lost the difference between the actual value of said impure mixture and the amount which would have been the value of a like quantity of ammonia complying with said warranty, and was further damaged in a large sum because of the aforesaid decrease in the output of its machines, and the aforesaid delaying, impeding, and making more expensive of its said operations, all of which said loss and damage aggregates, to wit, $7,500, which the defendant hereby recoups against the demand of the plaintiff and claims judgment for the excess."

Plea 4 is, in substance, the same as plea 6, relying upon the express warranty except that plea 4 alleged, in substance and effect, that all of the ammonia, instead of only some part of the original charge of each machine, was affected.

The plaintiff without filing any general traverse or replication, filed the following special replications to pleas 3, 4, 5, and 6:

"For replication pleaded separately to the third and fifth pleas to the complaint the plaintiff says that the price of the ammonia mentioned in said count is only a part of the cause of action sued on. Plaintiff sold the defendant all of the ammonia mentioned in said plea by description only; it sold aqua ammonia mentioned as 26 degree aqua ammonia at 60 degrees Fahrenheit, and sold the anhydrous ammonia as dry, anhydrous ammonia, and that said aqua ammonia was merchantable 26 degree aqua ammonia at 60 degrees Fahrenheit, and

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