Ives v. Anderson Engine & Foundry Co.
| Decision Date | 14 March 1927 |
| Docket Number | (No. 280.) |
| Parties | IVES et al. v. ANDERSON ENGINE & FOUNDRY CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Arkansas County; Geo. W. Clark, Judge.
Action by the Anderson Engine & Foundry Company against B. B. Ives and others, who filed a cross-complaint. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
John W. Moncrief, of Stuttgart, for appellants.
M. F. Elms, of Stuttgart, for appellee.
This is an action by appellee to recover upon two promissory notes in the sum of $1,314 each, both dated March 20, 1923, with interest from date at 8 per cent. per annum, on the first of which payment was indorsed in the sum of $296.36, $96.36 of which was for interest, and $200 on the principal. One of the notes became due 9 months, and the other 21 months, after date. These notes were given for the purchase price of a 60 horse-power Anderson oil engine, title to which was retained in the seller, and were given to the Anderson Foundry & Machine Company, the name of which was thereafter changed to the Anderson Engine & Foundry Company. Appellants defended on the ground that they were induced to purchase the engine on false and fraudulent representations and statements to the appellants that said engine was a good, efficient sound engine and was capable of and would operate a certain pump of appellants for watering rice grown by them and by these representations they were induced to purchase the engine and execute the notes sued on, whereas the engine was not as represented, and would not do the work claimed for it; that appellee knew they were purchasing said engine for the purpose of operating a pump on their rice farm, the well and pump of which were examined by the appellee, and that appellee assured them that the engine was capable of pumping the water to the quantity desired; that these representations were false, and known by the appellee to be false; and that, relying upon said representations, they purchased same; that, if said engine had been as represented, it would have given good service and efficiently operated said pump and well for eight or ten years; that it proved worthless, inefficient, unsound; and that as a result they lost their rice crop by failure of the engine to pump water sufficient to irrigate their crops; and that they had been damaged by reason of the loss of crop in excess of the purchase price of the engine; that the vendor warranted said engine to be capable, sound, and efficient to operate said pump, which warranty was breached by the failure of the engine to operate efficiently. They made their answer a cross-complaint against appellee, and denied that it was indebted to it in any sum.
Appellee replied to the cross-complaint, in which it denied that it made any false or fraudulent representations or statements concerning said engine, and denied that it warranted or guaranteed same as alleged, and states that the engine sold was formerly the property of R. L. Ives, and that R. L. Ives sold said engine to the appellants, and that the notes from appellants were taken to appellee, for the reason that R. L. Ives was indebted to it in a like sum on the purchase price of said engine.
On the issues thus joined, the parties went to trial. Ralph Wilson testified for appellants: That he helped appellant B. B. Ives in his rice crop in 1923, and that he heard the conversation and trade between appellant B. B. Ives and the agent of the appellee when he purchased the engine. That Mr. Ives did not know anything about oil engines, but that he inquired about the efficiency of the engine and what it would do. That Mr. Miller, the pumper, who was familiar with the well and amount of water required, gave them the dimensions of the well and the amount of water it was pumping, and that the agent of appellee stated the engine was capable of pulling the well, and that it had plenty of power, was in first-class condition, and would properly operate the well, and after that Mr. Ives bought the engine. In 1923 two capable men, recommended to Ives by the agent of appellee as being capable, operated the engine. That it would not operate very well, but continually got hot. That Mr. Ives knew that the engine had been previously operated up north of Stuttgart, and that the company had remodeled the engine. After Mr. Miller had told him the depth of the well, the capacity of it, how much water it would throw if it had proper power, the agent said the engine would pull it and throw the water with ease.
He further testified: That they had trouble with the engine in the 1923 season, did not have sufficient power, and sufficient water could not be put through it to keep it cool, and would overheat. That perhaps it would run ten days without giving any trouble, and that, if the engine had been as represented, they would have had no trouble with it. That it was worse in 1924 crop than in 1923, continued to grow worse. Two of the engine heads burst in 1924, which they had welded, and they would crack over again, and they would try to remedy it by new heads. They got the best of oils which were recommended by appellee, and had experts to look at it, and it was not due to the oil that the engine would get too hot and was overloaded. That they could not finish the pumping season in 1924 with that engine. That, when the engine got hot, the port holes would close up with carbon, and would show red hot, and they would have to use an excessive amount of oil, and about half the time the engine would not pull itself, and they would have to stop and put in oil. The engine caught fire and burned up, and after that they did not use it any more. He was asked this question:
He stated that he had experience in these matters, and that the average life of an oil engine ranges from eight to ten years; that R. L. Ives had used the engine only part of one season before B. B. Ives bought it from the machine company.
On cross-examination he admitted writing, as agent for appellant B. B. Ives, the following two letters:
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