J. A. Fay & Egan Co., Inc. v. Lafayette Lumber Co., Inc.

• Citation: 9 La.App. 674,119 So. 781
• Decision Date: 09 January 1929
• Docket Number: 387
• Parties: J. A. FAY & EGAN CO., INC., v. LAFAYETTE LUMBER CO., INC
• Court: Court of Appeal of Louisiana (US)

119 So. 781

9 La.App. 674

J. A. FAY & EGAN CO., INC., v. LAFAYETTE LUMBER CO., INC

No. 387

Court of Appeals of Louisiana, First Circuit

January 9, 1929

Appeal from the Parish of Lafayette. Hon. W. W. Bailey, Judge.

Action by J. A. Fay and Egan Company, Inc., against Lafayette Lumber Company, Inc., which filed a claim of reconvention.

There was judgment for defendant and plaintiff appealed and defendant answered appeal.

Judgment affirmed.

Mouton and DeBaillon, of Lafayette, attorneys for plaintiff appellant.

Voorhies and Labbe, of Lafayette, attorneys for defendant, appellee.

OPINION

ELLIOTT J.

J. A Fay & Egan Co., Inc., claims of Lafayette Lumber Company Inc., the amount of three notes representing the balance of the purchase price of a moulding machine, amounting in the aggregate to $ 900.00, with interest and attorney's fees.

Lafayette Lumber Co., Inc., resists payment and claims back from plaintiff by way of reconvention, the sum of $ 450.00 paid on the machine, $ 224.21 as freight, $ 71.23 for belting and $ 153.83 expended in constructing a foundation for the machine delivered, which defendant claims will not serve for a machine of any other make or size.

The facts show that J. A. Fay & Egan Co., Inc., acting on an order addressed to it by defendant, at its New Orleans sales office, dated June 26, 1923, sold and delivered to defendant a moulding machine, described in the contract as: "One rebuilt American 12" inside molder, will work up to 12" wide and 6" in thickness; four large feed rolls driven, all heads; four side and slotted, each fitted with a pair of knives, with three speeds of feed and counter shaft." This machine to be thoroughly tested and painted; to be guaranteed against faulty materials and workmanship, and to have been thoroughly rebuilt. Plaintiff's manager and sales agent in New Orleans wrote the contract and sent it to the defendant for its signature. The price was $ 1350.00 of which $ 450.00 was paid in cash, and the balance by the three notes sued on.

The machine was shipped from plaintiff's home plant at Cincinnati, Ohio, to defendant at Lafayette, Louisiana. The plaintiff, in shipping, drew on defendant a sight draft for $ 450.00, the cash part of the purchase price, and $ 73.84 in addition for belting, and attached the draft for $ 523.84, also three notes sued on to be signed, to the bill of lading, thus compelling a payment of $ 523.84 in cash, also $ 224.41 in freight, and the signing of the notes sued on, before defendant could take the machine out of the car. When the machine had been taken out, set up and tested, defendant took the position that it was not the kind nor make contracted for. That the machine contracted for, was an "American" make, of fast speed, from seven to ten years old, which would manufacture both light and heavy moulding. That the machine delivered was a slow feed, of the Houston-American make, from ten to twelve years old, would not make moulding under 1 1/2 inches in width, nor less than 1 inch in thickness, nor do the work contemplated by defendant and which plaintiff guaranteed it would do.

It notified J. A. Fay & Egan Co., Inc., that the machine in question was held subject to its disposal, and that it would not pay the notes in question. The plaintiff instituted suit on the notes.

Defendant set up in its answer that it did not owe the notes, that the machine delivered was not the make nor kind contracted for, and did not have the same qualities, alleged concealment of facts, and set up a demand in reconvention.

The lower court rendered judgment rejecting plaintiff's demand on the notes, and also against the plaintiff in favor of the defendant in reconvention for $ 784.05.

The plaintiff has appealed, and the defendant answering in this Court, prays that the judgment in its favor in reconvention be increased to $ 901.85, and in other respects affirmed. The plaintiff on its part alleging that more than one year had elapsed since the alleged concealment and defects were known to defendant, that its demand in reconvention was prescribed and barred by the prescription of one year under the law, Civil Code Arts. 2534, 2546. It accordingly filed in this Court a plea of prescription of one year against defendant's demand in reconvention and urges that it be sustained.

When the trial commenced, plaintiff offered in evidence the contract and notes sued on and closed its case in chief. The defendant then called P. J. Voorhies, its manager, as a witness, showed him the contract used on, and requested him to read it and state whether or not any definite speeds of feed are mentioned. The plaintiff objected on the ground that the contract had been offered in evidence and speaks for itself. The objection was overruled, and the witness answered that there were no definite rates of speed mentioned in the subject matter. He was then asked whether, under the description in the contract, a fast feed machine doing both light and heavy moulding could have been delivered. The plaintiff objected on the ground that the contract speaks for itself, and that the question asked an opinion from the witness which the Court itself should determine. The Court referred the objection to the merits. The defendant introduced under this ruling a considerable amount of testimony, such as letters between the parties, and parol evidence, the purpose of which was to show that the machine which was the object and cause of the contract, was a rebuilt American make of fast speed and capable of making both heavy and light mouldings, which the evidence shows, means large and small mouldings.

The plaintiff contends that these rulings were erroneous, and urges that they be set aside and the evidence disregarded.

The defendant alleges in its answer that the description in the contract is an uncertain and indefinite description of the property, and merely a general classification under which could fall machines doing different work, and containing nothing therein which would prevent the machine sold from doing the work which the plaintiff company guaranteed said machine to do, etc.

The evidence shows that there are several kinds of moulding machines. Some have fast feed, others have slow feed. Some make only large mouldings, others only light or small mouldings, and still others of fast feed will make both heavy and light mouldings. Such being the case, it follows that the written contract sued on contains a latent ambiguity which consists in the fact that it fails to state whether the machine sold is a fast or slow feed, and also whether it will make both heavy and light mouldings. This bears on the object as well as the cause of the contract.

The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him. C. C. Art. 2474.

Art. 2276 of the Civil Code does not apply in such a situation, to exclude any legal evidence necessary, in order to show the meaning of the contract when it is susceptible of two meanings and the description so general that it may refer to machines that are either fast or slow feed and will make both large and small sized mouldings. Greenleaf, Vol. 1, Sections 297, 298, 299 and 300.

The letters of the parties before and after the contract, and parol evidence were therefore properly admitted in order to show that the machine, which was the object and cause of the contract, was in fact a fast feed that would make both light and heavy mouldings, whereas the machine delivered was of slow feed and would make only large sizes.

The witness was also asked whether there were oral conversations and agreements and correspondence entered into pending the negotiations just prior to the date of this contract. Plaintiff objected, which objections are stated at length. They may be summarized as follows: that the written contract was the law between the parties, such proceedings and negotiations are merged therein. That the written evidence was not admissible beyond what is contained in the contract, or as to what may have been said before or at the time of making it, or since, or to show a condition under the contract different from that expressed in the act consented to before or after it was entered into, etc.

That defendant having admitted in its answer that it is still in possession of the machine, no evidence showing or intending to show character or warranty or that the goods delivered are different from or inferior to those sold is admissible, etc. That the contract provides that the retention of the machine after thirty days from its arrival at its destination constitutes a trial and acceptance and is a conclusive admission of the truth of all representations made by or for the seller, and a fulfillment of all its contracts of warranty expressed or implied.

The Court referred the exception to the merits, and the defendant introduced under this ruling a large amount of evidence in the form of letters, telegrams, conversations over the phone and oral conversations between the parties before and after the contract. The plaintiff urges that the ruling was erroneous, and that it should be set aside and the evidence disregarded.

The object and purpose of the testimony was to show that the machine shipped and delivered to the defendant was not the make or kind called for by the contract.

The word "fraud" is not expressly used in the answer, but defendant alleges that plaintiff shipped and delivered to it a different make and kind of machine from that contracted for, and inferior to it in quality. That it would not do the work which plaintiff guaranteed the machine contracted for, would do.

The Civil Code Art. 2547, on the subject of vices which the seller has concealed from...