Guyanootte Coal Co. v. Va.n Electric

• Decision Date: 19 June 1923
• Docket Number: No. 4818.,4818.
• Citation: 94 W.Va. 300
• Court: West Virginia Supreme Court
• Parties: guyanootte coal company v. virginian electric & Machine Works.

94 W.Va. 300

guyanootte coal company

v. virginian electric & Machine Works.

No. 4818.

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1923.

Decided June 19, 1923.

1. Sales Secondhand Mining Machine Held Sold Under Implied Warranty.

When by a written order a 12AA second hand Goodman Mining Machine is to be delivered to the plaintiff f. o. b. Birmingham, Alabama, sight draft attached to bill of lading for $3500.00, there is an implied warranty that when said machine is delivered f. o. b. at the place stated, it is to be a merchantable second hand machine, and such a machine as will perform the service for which it is ordered in a reasonably satisfactory manner. (p. 305).

2. Principal and Agent No Contract on Order by Commercial Traveler, Until House He Represents Accepts It.

In the absence of evidence to the contrary, the presumption is that an order for goods taken by a commercial traveler is subject to the approval of the house which he represents. and no contract results until such order is accepted.(p. 304).

3. Evidence Oral Statements of Commercial Salesman, Made Before Written Order Prepared and Signed by Purchaser, Will not Alter its Effect.

The contemporaneous oral statements of a commercial salesman, made before a written order is prepared and signed by the purchaser, will not change or alter the effect of said order or impress upon it a different warranty than that implied by the writing. (p. 310).

4. Appeal and Error Verdict not Disturbed, Unless Contrary to Evidence or Without Supporting Evidence.

Where a case has been tried and the questions of fact arising therein submitted to a jury, and it appears there has been no error of law committed by the lower court, this court will not disturb the verdict unless it clearly appears that the same is contrary to the evidence, or that there is no evidence to support it. (p. 306).

5. Same Errors in Admission or Rejection of Evidence, not Made Grounds of Motion for New Trial or Subjects of Special Bills of Exception, Showing Evidence and Rulings, Deemed Waived.

Errors in the rulings of the trial court, upon admission and rejection of evidence, are deemed to have been waived, if they are not made grounds of the motion for a new trial, nor made subjects of special bills of exceptions showing the evidence and the ruling of the court thereon, (p. 307).

Error to Circuit Court, Kanawha County.

Action by the Guyandotte Coal Company against the Virginian Electric & Machine Works. Judgment for defendant, and plaintiff brings error.

Affirmed.

Miriter & McNemar, and Morton, Mohler & Peters, for plaintiff in error.

Mathews, Campbell & McClintic, for defendant in error.

McGinnis, Judge:

This suit is an action of trespass on the case in assumpsit.

The declaration contains a common count in assumpsit and also a special count, setting up that on the......day of July, 1920, the plaintiff purchased from the defendant for immemiate use, a certain mining machine of the Goodman type, described as a 12AA Goodman machine, which was represented to the plaintiff by said defendant to be in good condition and working order and practically as good as a new machine of the same kind and make, and to have been used for a less time than one year, at the price of $3500.00 to be delivered by the defendant to the plaintiff in a reasonable time from the date of purchase f. o. b. Birmingham, Alabama, freight allowed to Kitchen, W. Va., sight draft attached to bill of lading, and to be paid by the defendant on the arrival thereof at Kitchen, "West Virginia.

"And the plaintiff further avers that the said Goodman Machine so sold to it as aforesaid by the defendant was, by the defendant at the time of sale, represented to be equipped with trucks of the gauge of......inches, whereas the tracks in the plaintiff's mine on which said trucks would run were and are of the gauge of 48 inches, and it was further represented by the defendant to the plaintiff that, when the trucks of said machine should be changed to the gauge of 48 inches, the said machine would be in condition for immediate use by said plaintiff. At the time when plaintiff purchased said machine it became and was necessary for the plaintiff in order to use said mining machine to purchase from the manufacturer of said machine the parts needed to change the gauge of its said trucks from the then existing gauge thereof to the gauge of 48 inches, all of which the defendant then and there had notice. And in consideration thereof and that the said plaintiff at the like instance and request of the said defendant, did then and there undertake and faithfully promise the said defendant to accept and receive the said Goodman 12AA mining machine and to pay for the same at the price aforesaid, the said defendant, undertook and then and there faithfully promised the said plaintiff to deliver the said machine to the said plaintiff as aforesaid.

The said plaintiff avers that immediately upon the making of the aforesaid contract between the parties as aforesaid it proceeded to purchase, and did purchase, from the manufacturer of said machine the necessary parts to change the gauge of the trucks of said machine from the then existing gauge to the gauge of 48 inches, and which said parts were of the value of, to-wit: $500.00, in order that said parts might be received by the plaintiff and be available for use immediately upon the arrival of said machine at Kitchen, W. Va., of all which the defendant had notice. And the plaintiff avers that on the...... day of Sept., 1920, the said defendant delivered to the said plaintiff f. o. b. Birmingham, Alabama, freight allowed to Kitchen, W. Va., sight draft attached to bill of lading, a Goodman 12AA mining machine representing the same to be the mining machine sold to the plaintiff by the defendant, and the plaintiff then and there paid to the defendant upon the arrival of said machine, at Kitchen, West Virginia, the sum of $3500.00 as and for the price of the said machine so sold to it by said defendant; that the said Goodman Mining Machine so delivered as aforesaid was not merchantable and was not of good and suitable material, had been used for a greater time than one year and was not in practically as good condition as a new mining machine of the same kind and make would be in, but was badly out of repair and not in working order and had many of its parts broken and totally worthless to said plaintiff; that the said plaintiff immediately upon discovery that the said mining machine was unsuitable and unfit for use and totally worthless to the said plaintiff, to-wit, on the......day of Sept., 1920, notified the said defendant that said mining machine was not according to the contract between the parties, and the same was held at the defendant's risk and subject to its order."

On July 16, 1920, the plaintiff was engaged in the coal business at Kitchen, Logan County, O. G. Callihan was its Superintendent, R. C. Scott was its Assistant Superintendent and G. W. Hill was its Mine Foreman. The defendant, the Virginian Electric & Machine Works, was engaged in selling electrical and other mine supplies, with its place of business in the City of Charleston; E. M. Keatley was its President, William Crichton its General Manager, and H. C. Harker was, at the time, its traveling salesman and traveled in the Logan and N. & W. Coal Fields, with headquarters at Huntington, W. Va. His duties were to call on the mines and sell mine supplies. On the 15th day of July, 1920, Harker had a conversation with the plaintiff's mine foreman at Kitchen, in which Harker told the mine foreman about a Goodman 12AA machine which Harker said was at the time owned by.the defendant, his employer, that the machine was in good condition and had only been used a few months, by the Empire Coal Co. at Birmingham, Alabama; that on the same day Mr. Callihan, Superintendent of the plaintiff's works, called him over the telephone and asked about this machine, about which he, Harker, had described to the mine foreman and asked if his company still had those machines, he told him yes, and Callihan requested him to come to Kitchen the next day, that his company wanted one of the machines in a hurry. Harker called on Callihan at Kitchen on the next day, July 16th, 1920, and represented the machine to Callihan as it had been represented to him, that the machine was supposed to be in first class condition, that it had only been run a very short time, and it was too high for the coal where it had been used, and the reason the company where they had been using it desired to get rid of it, was that they were replacing it with a low vein machine, and the Guyandotte Coal Company could have immediate delivery of the machine, and that they closed the deal for the machine at $3500.00.

Harker also testifies that he obtained his information as to the description and condition of the machine from Mr. Crichton, general manager, of the defendant. The question as to whether this sale made by Harker was a completed transaction or was subject to the ratification or rejection of the defendant is raised in this case. Harker was a traveling salesman. There seems to be no attempt to show that Harker was authorized to make this sale binding upon his employer, the defendant. Since there is no evidence showing said authority, we do not think that he had such power. The case of Bauman v. McManus et al, 10 L. R. A., N. S., 138, held that:

'' Since in the absence of evidence to the contrary the presumption is that on order for goods taken by a commercial traveler is subject to approval by the house which he represents and no contract results until such order is accepted, etc. * * * *"

The authority of Harker to warrant the condition of the machine is specifically denied. The written order signed by Callihan, contains no express warranty of this machine. It is addressed to the defendant at Charleston. The only description given is, "1 12AA Goodman Machine Second Hand". Can the...