J. T. Fargason & Sons, Inc. v. Cullander Machinery Co., 39668

• Decision Date: 13 June 1955
• Docket Number: No. 39668,39668
• Citation: 224 Miss. 620,80 So.2d 757
• Parties: J. T. FARGASON & SONS, Inc., et al. v. CULLANDER MACHINERY COMPANY, Inc.
• Court: Mississippi Supreme Court

Page 757

80 So.2d 757

224 Miss. 620

J. T. FARGASON & SONS, Inc., et al. v. CULLANDER MACHINERY COMPANY, Inc.

No. 39668.

Supreme Court of Mississippi.

June 13, 1955.

Stovall Lowrey, Chas. L. Sullivan, Maynard, Fitzgerald & Maynard, Clarksdale, for appellants.

Roberson, Luckett & Roberson, Clarksdale, for appellee.

McGEHEE, Chief Justice.

This is a suit to recover the sum of $28,661.50 as damages for the complete loss of a rice crop which was planted about June 1, 1952, on 197 acres of land in Coahoma County, and which rice crop consisted of a good stand thereof and was about 3 inches high at the time it died, because of the alleged failure of a well pump, motor and other equipment installed by the defendant, the appellee Cullander Machinery Company, Inc., of Belzoni, Mississippi, to continue to produce a sufficient quantity of water for the proper irrigation of the rice field.

The original declaration was predicated upon the alleged defective condition of the motor which failed to run continuously so as to produce a minimum of 2,000 gallons of water per minute necessary for the proper irrigation of the rice field, as stipulated for under a written contract between the plaintiff J. T. Fargason & Sons, Inc., and the defendant Cullander Machinery Company, Inc. An amended declaration was filed which alleged that the defendant was liable for the loss of the rice crop on the ground that the irrigation equipment was inadequate to serve the purpose for which it had been purchased and installed in that it was of insufficient capacity to continuously produce the quantity of water stipulated for and needed to sustain the life of the young rice, which died on or about June 10, 1952. It is undisputed that the equipment would produce 2,000 gallons of water per minute while in operation, but that the motor kept stopping and failing to produce any water at all until adjusted again.

It appears from the proof that the appellants C. A. Spragins and Wm. W. Spragins had agreed with the appellant, J. T. Fargason & Sons, Inc., the owner of the land, to perform the necessary labor in connection with the planting, irrigation, production and harvesting of the rice crop for three-fourths of the yield from the rice crop on the said 197 acres of land in consideration of their said co-plaintiff furnishing the land, rice seed, and the irrigation equipment suitable for the production of the rice crop and receiving the other one-fourth of the value of the yield thereof.

On motion of the defendant, Cullander Machinery Company, Inc., the names of the Spraginses were stricken from the declaration and amended declaration on the ground that they were not parties to the contract sued on and alleged to have been breached.

It had been alleged by the plaintiffs that the corporate plaintiff and the Spraginses had entered into a joint undertaking for the production of the rice crop, and consequently the question arose as to whether the relation of the said plaintiffs inter se was merely that of landlord and tenant instead of partners or joint venturers. At any rate, the motion on the ground of misjoinder of plaintiffs was sustained by the trial court, and at the conclusion of the testimony offered by the plaintiffs there was a directed verdict in favor of the defendant as to the remaining plaintiff J. T. Fargason & Sons, Inc., on the ground that the defendant, not being the manufacturer of the pump, motor and other irrigation equipment, owed only the duty to the other contracting party to replace any part of the equipment which proved to be defective, under the terms of the contract, and that there was no implied warranty on the part of the defendant that the equipment was of sufficient capacity to serve the purpose for which the same had been purchased. All of the plaintiffs join in this appeal, on the basis of the contract and the oral proof offered in evidence by the plaintiffs, since the defendant offered no testimony due to the fact that the trial court had sustained the motion to exclude the remaining plaintiff's evidence and had directed the jury to find for the defendant.

The written contract, made Exhibit 'A' to the declaration and amended declaration, was signed by the plaintiff J. T. Fargason & Sons, Inc., and by the defendant Cullander Machinery Company, Inc., by J. T. Fleming, Jr., agent. It provided, among other things, the following: 'Subject to the conditions printed on the back of this sheet, we offer the following articles at the prices set opposite.' The offer gave a choice to the purchaser of either of three types of equipment, namely:

'Item #1. One Figure 6920 Fairbanks oil lubricated turbine pump consisting of 60' setting of 8" water column. 2 1/2" oil tubing 17/16" shafting, 10' discharge, 10 suction set in customers suitable strata to produce 2000 G.P.M. or more. Belted head and V Belts furnished if power unit is used.

'Item #2. Cullander Machinery Co., Inc., agrees to install pumps in well drilled by them to a maximum depth of 110' with screen placed in customers suitable strata to produce the above mentioned amount of water.

'Item #3. Cullander Machinery Co., Inc., agrees to furnish customers choice of power units at prices listed below.

50 H.P. Electric Motor with switches & starter ($5982.70)

60 H.P. Electric Motor with switches Reduced Voltage ($6619.50)

Model B 427 Continental Red Seal Engine on Butane or Natural Gas ($6391.60)

Plus 2% Sales tax.'

On the reverse side of the signed agreement containing the above provisions there appears the following pertinent stipulations:

'* * * this proposal is made with the distinct understanding that we are not to be held liable for damages of any character whatsoever, consequential upon delays due to defective materials, delays in shipments or in erecting * * *.

'* * * that there is no agreement or promise relating to this contract or transaction not embodied herein and in the notes evidencing the unpaid purchase money.'

Without detailing the testimony offered by the plaintiffs, a summary thereof would show that no complaint is made of the well drilled by the defendant, nor of the pump which it installed....