Harrison Brothers v. Murray Iron Works Company
| Citation | 70 S.W. 261,96 Mo.App. 348 |
| Parties | HARRISON BROTHERS, Respondents, v. MURRAY IRON WORKS COMPANY, Appellant |
| Decision Date | 03 November 1902 |
| Court | Court of Appeals of Kansas |
Appeal from the Nodaway Circuit Court.--Hon. Gallatin Craig, Judge.
AFFIRMED.
STATEMENT BY BROADDUS, J.
The plaintiffs were at and prior to the sixteenth day of March 1901, engaged as partners in the business of putting up and retailing natural ice in the town of Maryville, Missouri, and the defendant company located at Burlington, Iowa, was engaged in the business of constructing and putting in operation machinery for the manufacture of artificial ice. On said day, defendant agreed with plaintiffs to construct and put in operation an ice plant in said town of Maryville, to be completed and in operation by the first day of July next thereafter. This agreement was in writing, which provided that the machinery for manufacturing ice when properly operated would produce refrigeration equal to the melting of one ton of ice daily, continuous operation, and further agreed that with proper care, the ice freezing apparatus would produce five tons of clear, merchantable ice every twenty-four hours of continuous operation. It was a part of said contract, that when said machinery was completed, the defendant would furnish an engineer, who was to have charge thereof for ten days for the purpose of testing its fitness and capacity to meet the requirement of the said agreement and if upon such test it fulfilled the requirement, it should be accepted by the plaintiffs, and if not, the plaintiffs might reject the same and so notify defendant in writing, and permit it to enter the premises of plaintiffs, on which the machines might be erected, and upon returning to them whatever money they had paid to defendant, remove the same. It was also provided that all foundations, masonry and carpenter work for compressors, engine, pumps, tanks, and condensers, were to be provided by the plaintiffs, and all holes for pipes to pass through wall or floors were to be made by them, and they were also to supply mains at such place in the building as designated by defendant.
The plaintiffs were also to furnish the building, to receive the machinery, to insure said machinery for the use of defendant and to furnish certain labor necessary in the work. The contract has a clause for delivery f. o. b. (free on board the cars) at Burlington, Iowa, freight to be deducted from second payment to be made upon the contract.
It appears that the putting in of the machinery was completed on the fifteenth day of July, and that after the engineer of defendant had been operating it for more than ten days, it proved unsatisfactory to the plaintiffs, whereupon they gave to the defendant the required written notice, that they rejected it, upon which notice, defendant paid to plaintiff $ 3,800, and removed the machinery. The sum so paid represents $ 3,581.86, money paid to defendant on the contract price (which was $ 5,800) $ 216.14 paid by plaintiffs for freight of the machinery from Burlington, Iowa, to Maryville Missouri, and $ 2 bank exchange. It being a part of the plaintiffs' case, as shown by the petition: "That in the winter prior to the ice season for the year 1901, having in contemplation the erection of a plant for the manufacture of artificial ice, they only put up enough ice to answer for the use of their customers until the first of July, of which it was alleged the defendant was informed at the time of the making of said contract; that their ice gave out in July and as they had none to sell and deliver during the remainder of the season, they lost the usual profits on such sales, and lost their customers thereby, for all of which, they ask compensation. Plaintiffs' evidence tended to show the amount they had paid out in the performance of their part of the contract, for labor furnished during the progress of the work, for cost of foundation, providing mains, and other damages.
The defendant relied on accord and satisfaction. And it alleged that after constructing said machinery, it was ascertained that by reason of the extraordinary and unprecedented heat of the summer, the water furnished by the plaintiffs was fully twenty degrees hotter than was usual or ordinary, by reason of which said water required a greater degree of refrigeration than the melting of one ton of ice per day that the defendant offered to and was willing to and could have so accommodated the machinery to the actual conditions, but by the wrongful acts of plaintiffs, they made the successful working of said machinery impossible; and that the plaintiffs when they received the said sum of $ 3,800 knew that defendant was denying its obligations to pay said sum; and that it was paying the same in good faith, as a full and complete adjustment of any right or claim that plaintiff had or might have growing out of said agreement, or in any manner connected therewith. There was evidence tending to show that the defendant's agent offered to adjust the machinery to existing condition, but that plaintiffs refused the offer and insisted on rejecting it altogether.
When the defendant paid to the plaintiffs said sum of $ 3,800, a receipt was executed by the plaintiff upon a proper construction of which, in connection with what was said by the parties at the time, and the surrounding circumstances, depends the determination of the question before us. This receipt with erasure and interlineations is as follows (words and figures in brackets having been erased):
"$ 3800.00
[$ 3581.86.]
When the defendant was preparing to remove the machinery, it presented to the plaintiffs above receipt as shown before erasures and interlineations at which time, it read for $ 3,581.86, which represents the actual amount paid by the plaintiff to the defendant on the contract. The plaintiffs signed the receipt, as it then stood, but refused to deliver it, until the money they had paid for freight, $ 216.14, and $ 2 for exchange, was paid them. Defendants' agent afterward paid to plaintiffs the sum of these two items, and the receipt was then changed so as to read as it now appears. The evidence disclosed the fact, that the freight bill of $ 216.14 was deducted at the time from a payment of $ 2,000, made by the plaintiffs, but the $ 2 for exchange was not.
There was some hesitancy upon the part of the defendant's agent in agreeing to pay plaintiffs the freight bill in addition to the amount actually received from plaintiff and he expressed a desire to hear from the defendant company before he would do so. Afterwards he stated that it was all right, and the defendant would pay it. The matter when it was finally concluded was in the hands of the respective attorneys of the parties. The plaintiffs' lawyer after stating on the witness stand that the defendant through its attorney had agreed to allow the whole claim for $ 3,800, then said to him that he would not pay any part of said amount until we signed (delivered) the receipt. The witness during the time, or previously, stated as, he testified, that it was "an outrage; you ask the plaintiffs to sign the receipt, as that much was due them and they ought to have it without signing the receipt." Then he was asked this question, "
There was a trial before a jury and plaintiffs obtained a verdict for the sum of $ 1,700, on which the court rendered judgment, from all which defendant appealed.
In this court, the parties have submitted the case upon the following written stipulation, viz.:
"The parties to this cause hereby mutually waive all questions raised on this appeal except the following two: First. Does the contract provision relating to the return of the advanced purchase money and removal of the machinery, limit respondent's remedies or rights, as against the appellant, to the return of the sum so advanced? If so, it is agreed that the cause may be...
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