Huson Ice & Machine Works v. Bland & Chambers

• Decision Date: 07 April 1910
• Citation: 167 Ala. 391,52 So. 445
• Court: Alabama Supreme Court
• Parties: HUSON ICE & MACHINE WORKS v. BLAND & CHAMBERS.

52 So. 445

167 Ala. 391

HUSON ICE & MACHINE WORKS v. BLAND & CHAMBERS.

Supreme Court of Alabama

April 7, 1910

Appeal from Circuit Court, Henry County; A. A. Evans, Judge.

Action by the Huson Ice & Machine Works against Bland & Chambers. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Ben F Reid, for appellant.

Espy &amp Farmer, for appellees.

MAYFIELD J.

The first two counts declare on a breach of a written contract of sale by which plaintiff sold to defendants a certain ice plant, complete, together with all the iron work necessary for the completion and setting up of the plant--the property to be delivered f. o. b. the cars at the shipping point, and the title to remain in the plaintiff, the vendor, until the purchase price was fully paid. The total purchase price was $3,000, $800 of which was to be paid in cash, on the receipt of the plant for operating purposes, and the balance of the purchase price was to be evidenced by two promissory notes executed by defendants to plaintiff, each for $1,100, one payable 6 months and one 12 months from the date the property was received by defendants for operating purposes. By the terms of the contract of sale the plaintiff agreed to furnish a competent and skilled superintendent to assist in setting up and installing the plant; and plaintiff, the vendor, by the terms of said contract, guaranteed the plant and all the machinery connected therewith for a period of 12 months, with the condition that, if any part thereof broke or proved defective during that time, plaintiff would repair or replace the same, and further agreed to test and insure the capacity of the plant to manufacture six tons of ice per day. These two first counts allege that plaintiff performed fully its part of the contract, in so far as it could do so, but that the defendants wholly failed and refused to perform their part, in that they refused to accept the property when shipped and offered for delivery and installation, or to allow plaintiff to install it, or to test the capacity or efficiency of the plant, in accordance with the provisions of the contract. The other and third count set up the same state of facts, but declared on a breach of contract, growing out of the contract, in that defendants negligently failed, in disregard of their duty, to perform their obligations under the contract alleged.

The defendants pleaded the general issue, and several special pleas, setting up fraud and deceit on the part of the plaintiff, and that defendants thereby were induced to make or enter into the contract as alleged--that is, specifically, that plaintiff made false representations to the defendants as to the character, quality, capacity, and worth of the machinery and plant sold; that defendants relied upon these false representations, and were thereby induced to make the purchase and contract; that they had no opportunity to inspect the property before executing the contract, but relied solely upon these representations; that when the property arrived, and they had the opportunity to inspect, they did so, and found it not to be as represented, but much inferior and of much less value, and not the property they contracted to purchase, and not the property they desired; and that on account of this fraud on the part of the plaintiff they declined to receive the property or to carry out the contract.

Demurrers to these pleas were overruled, and the plaintiff replied, and demurrers were sustained to all except one of the replications, which it is unnecessary to consider, as the rulings thereon were in favor of plaintiff, the appellant here. These rulings on the demurrers, pleas, and replications, adverse to the appellant, raised the questions which are considered by counsel to be the most important on this appeal.

The pivotal question is thus stated by counsel for appellant "The first, second, and third assignments of error raise the question of law in the case. Defendants in the court below relied on special pleas setting up that the machinery and plant shipped was not...