J.A. Fay & Eagan Co. v. T.J. Dudley & Sons
| Decision Date | 15 August 1907 |
| Parties | J. A. FAY & EAGAN CO. v. T. J. DUDLEY & SONS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
When a known, described, and definite article is ordered of a manufacturer, although it be stated by the purchaser that it is required for a particular purpose, yet if a known described, and definite thing, which is of the kind and quality called for by the order, be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.
[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 773.]
When the written contract for the sale of an article provides that the retention of the article for a given time after the date of shipment shall constitute a trial and acceptance, and be a conclusive admission of the truth of all warranties, the mere fact that within the time stipulated notice of dissatisfaction has been given to the seller, but notwithstanding the article has been retained, will not have the effect to relieve the buyer from the force of the terms of the written contract.
The alleged new agreement between the plaintiff and defendant in reference to the machine was entirely lacking in consideration, and could not be the basis of any liability on the part of the plaintiff.
[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 259.]
Error from Superior Court, Muscogee County; W. A. Little, Judge.
Action by J. A. Fay & Eagan Company against T. J. Dudley & Sons. Judgment for defendants, and plaintiff brings error. Reversed.
J. A Fay & Eagan Company, a corporation, brought suit against Dudley & Sons, a partnership, upon an account. The bill of particulars was as follows: "T. J. Dudley & Sons, to J A. Fay & Eagan Co., Dr. June 28, 1901. Shop No. 58,289. One No. 6 latest improved tenoner, with double upper and lower tenoning heads and bits, upper and lower cope heads and bits, left off but with copy spindles, T X L pulleys 16
An amendment to the petition alleged that the machine referred to in the bill of particulars was sold and delivered under the terms of a written contract, a copy of which is exhibited. The contract is as follows: ' mortise and hole, and to be suitable for small stationary slats, if necessary, as small as 7/8" ' ' to suit head you have; you to send a wire to confirm this diameter. For which agree to pay nine hundred and seventy-eight dollars with exchange. The purchaser agrees to make settlement within thirty days after date of shipment, and to then evidence all payments due at a later date, by notes bearing date of shipment and interest. In case payment is divided to be made as follows: $490 cash on arrival. $488 in four months with 6 per cent. interest. Title to machine to remain with us till paid for; you to sign agreement to this effect. It is agreed that title to the property mentioned above shall remain in the consignor until fully paid for in cash; and that this contract is not modified or added to by any agreement not expressly stated herein; and that a retention of the property forwarded, after thirty days from date of shipment, shall constitute a trial and acceptance, be a conclusive admission of the truth of all representations made by or for the consignor, and void all its contracts of warranty express or implied. It is further agreed that the purchaser shall keep the property fully insured for the benefit of the J. A. Fay & Eagan Company"-signed by the parties.
The defendants filed an answer in which they denied all liability. The answer also alleged that the defendants were in need of a machine of the character described in the contract, and the plaintiff sold the machine and warranted it to be the latest improved double-headed tenoner and suited for the purposes intended, such purpose being the manufacture of doors, sash, blinds, and furniture, and this was known to the plaintiff. Plaintiff guaranteed that the machine would do the work required, that it was properly constructed, and that it would last for many years. The price agreed on was $800 one-half to be paid on arrival, and the balance in four months, with interest, and the title to remain in the plaintiff until paid for. On June 28, 1901, the machine was shipped to the defendants, and upon its arrival $400 was paid to the plaintiff, and the machine installed in the shops of the defendants. In doing so, they relied upon the warranty and representations of plaintiff that the machine was as represented. After a thorough trial and test it was discovered that it was not as represented, was not properly constructed, and would not do the work, nor was it suitable for the purposes intended. Plaintiff was at once notified of the defects, and defendants offered to return the same upon repayment of the amounts that had been paid. Relying upon the representations, the defendants installed the machine and intended to use it, and in consequence thereof have been compelled to pay out various sums of money for freight and other expenses, amounting, in the aggregate, to more than $500. Defendants have repeatedly offered to return the machine, and still offer to do so. It is alleged that the defendants have been damaged in the sum set forth in the pleadings, and it...
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