Kentucky Saw Works v. Little River Land & Lumber Co.

• Decision Date: 29 October 1897
• Court: Tennessee Supreme Court
• Parties: KENTUCKY SAW WORKS v. LITTLE RIVER LAND & LUMBER CO.

42 S.W. 527

KENTUCKY SAW WORKS v. LITTLE RIVER LAND & LUMBER CO.

Court of Chancery Appeals of Tennessee.

October 29, 1897.

Appeal from chancery court, Knox county; H. B. Lindsay, Chancellor.

Bill by J. B. Seinor, under the firm name of Kentucky Saw Works, against the Little River Land & Lumber Company, to recover money due on account. From a decree of the chancellor in favor of complainant, defendant appeals. Affirmed.

Taylor & Pepper, for appellant. Ingersoll & Peyton, for appellee.

WILSON, J.

This bill was filed November 10, 1896, by J. B. Seinor, doing business in Louisville, Ky., under the firm name of the Kentucky Saw Works, against the defendant, a corporation of this state, to recover $188.40, alleged to be due for a couple of band saws and some other sawmill appliances sold the defendant in 1895. The account sued on is itemized and verified. The bill was taken for confessed, but upon answer, and for reasons satisfactory to the chancellor, the default was set aside. The correctness of $26.40 of the account is admitted, but it is alleged that the two band saws received from the complainant were of inferior quality, and unfit for the work for which they were bought, and that soon after they were received and put in use they cracked, — one much more than the other, — and became practically useless, whereupon complainant was notified of the fact, and that the saws were subject to his order. It is also alleged in the answer that, when the defendant sent the order to the complainant for the saws, it expected to get Disston saws, and that, instead of getting this brand, it received Fowle Bros. & Clemson saws, but that it determined to try them, to see if they came up to the implied, if not express, warranty, and, if they did, to retain and pay for them, although not the saws it ordered, wanted, or expected to receive. It is further stated in the answer that in September, after the saws were received, Mr. Seinor was in Knoxville and was informed by the proper official of the defendant company that the saws were not satisfactory, whereupon he was furnished a buggy, and went out to the mill where the saws were, to see them for himself; and it is averred that when he returned to Knoxville he had an interview with Mr. McDowell, an officer of the defendant, and admitted to him that the saws were cracked, and that, especially, one of them looked badly, but said he thought one of them would do all right, and asked defendant to give the saws further trial, which defendant reluctantly agreed to, — holding, however, the saws from that time as the property of the complainant, and subject at all times to his order. It is alleged that at the time the complainant made the request for a further trial of the saws, and it was granted, he knew that there were no logs at the mill, and that there would not be until the following spring, when the tide was in the river, and, therefore, that there could be no further trial of the saws until that time. It is further averred that when the logs did arrive, and the further trial was made, the saws again proved defective and unfit for service, of which complainant had due notice. It is, moreover, alleged that about this time complainant drew a draft on the defendant for the price of one of the saws, notifying defendant at the time that he was satisfied that one of them would prove all right, and that he thought defendant ought to take one and pay for it; but that, this claim of complainant being untrue, and both of said saws being cracked, defective, and unfit for the work for which they were intended, and the same being the property of complainant, payment of the draft was refused by defendant. Defendant insists that it ordered sound and good saws, not cracked and defective ones, and that the contract of complainant required him to furnish sound and good saws, and that, not having furnished such, he is not entitled to recover. Defendant says that it has at all times since the order been ready and willing to take and pay for two good saws. The parties adduced a considerable volume of proof in support of their respective contentions under the pleadings. The case was heard by Chancellor Lindsay August 23, 1897, and he held that the bill was sustained by the evidence, and gave complainant a decree for $188.40 and the costs. From this decree defendant prayed and was granted an appeal to the supreme court, and has assigned the following errors: First. Error in giving complainant a decree for $188.40 against the defendant. Under this error it...