Loeb v. City of Montgomery

• Decision Date: 23 January 1913
• Citation: 7 Ala.App. 325,61 So. 642
• Parties: LOEB et al. v. CITY OF MONTGOMERY.
• Court: Alabama Court of Appeals

61 So. 642

7 Ala.App. 325

LOEB et al. v. CITY OF MONTGOMERY.

Court of Appeals of Alabama

January 23, 1913

Rehearing Denied April 8, 1913

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by the City of Montgomery against M. Loeb, doing business as the Loeb Hardware Company, and the National Surety Company to recover for the breach of the conditions of a bond. Judgment for plaintiff, and defendants appeal. Affirmed.

Thomas J., dissenting in part.

The complaint was as follows: "Plaintiff claims of defendants $500 for the breach of the condition of a bond made by the defendants on the 12th day of August, 1910 payable to the plaintiffs, in the sum of $1,320, with the condition that they furnish 2,000 feet, more or less, of their three-ply Baker Babric Brand solid, multiple woven rubber-lined cotton fire hose, 2 1/2 inches interial diameter, coupled complete in sections of 50 feet, delivered f.o.b. Montgomery, Ala., at $1.10 per foot, guaranteed to withstand a test pressure of 400 pounds to the square inch when delivered, and be free from defects in material or manufacture for 36 months from the date of the delivery, and plaintiff says that the condition of said bond has been broken by defendant in this: That said hose was not free from defects in material or manufacture, and a short time after the purchase, and long before the expiration of the said 36 months from the date of the delivery thereof, to wit, 400 feet of said hose, by reason of defects in said material and manufacture, bursted and became wholly unfit for the use for which it was sold to plaintiff and wholly worthless to plaintiff, to the damage of plaintiff as above stated."

The demurrers raise the proposition that the complaint fails to allege the manner in which the hose was defective in material or manufacture, and fails to allege or show any breach of the conditions of the bond sued on. The pleas were: First, the general issue; and, second, the defendant says in answer to the complaint that, before this suit was commenced, it furnished to the plaintiff 2,000 feet of its three-ply Baker Fabric Brand, solid multiple woven, rubber-lined cotton hose, 2 1/2 inches internal diameter, coupled in sections complete of 50 feet, and also guaranteed to plaintiff that said hose would withstand a test pressure of 400 pounds to the square inch, when delivered, and guaranteed it against defects in material or manufacture for 36 months from the date of the delivery.

The demurrers to the plea raise the question that the plea fails to aver that the hose delivered to the plaintiff would withstand a pressure of 400 pounds to the square inch when delivered; second, for that said plea fails to aver that said hose when delivered was free from defects in material and manufacture when so delivered; third, for that said plea fails to aver that said hose when delivered would withstand a pressure of 400 pounds to the square inch, and was free from defects in material and manufacture so that said hose would perform the service for which it was sold to plaintiff for a period of 36 months from the date of its delivery. The bond was conditioned upon a maximum liability of $1,320 because of the fact that the obligee had agreed to furnish to the city of Montgomery 2,000 feet of fire hose, and guarantee same for a period of three years against defects in material and manufacture, a copy of which agreement is attached and made a part hereof. And assumed for the principal obligor the faithful performance of the terms and provisions of said contract, subject to certain exceptions not necessary to be here set out.

The proposal to the city was to furnish the hose as described in the complaint and the plea at $1.10 per foot, with the following guaranty: "The hose offered under this proposal is guaranteed to withstand a test pressure of 400 pounds to the square inch when delivered, and against defects in material or manufacture for 36 months from the date of delivery."

The oral charge was as follows: "In the event, after a fair consideration of this evidence, you should determine that the city of Montgomery should recover in this case, then the measure of damages would be the original purchase price, and the interest on that up to the day of the trial. In other words, the reason for that is this: If a city should buy a hose and use it for two years, and it was guaranteed for three, and the hose broke from some defect, it might be that the whole town would burn up from a defect in the hose, and it would not be proper to allow for the use of it during that time." The last clause was the one excepted to.

Weil, Stakely & Vardaman, of Montgomery, for appellants.

C.P. McIntyre and John V. Smith, both of Montgomery, for appellee.

PELHAM J.

This suit was instituted by the appellee, a municipal corporation, in the court below to recover for the breach of a condition of a bond executed by the appellants in connection with the sale to the municipality of a certain quantity of fire hose by the principal in the bond, the Loeb Hardware Company. The sale of fire hose was made on a contract of sale under the terms of which a representation or "guarantee," as alleged in the complaint, was made that the hose would withstand a certain amount of pressure and prove free from defects in materials or manufacture for a designated period. The bond was conditioned for a faithful performance of the contract of sale on the part of the seller, and the complaint averred a breach of the condition of the bond in that the fire hose failed to withstand the stipulated pressure and be free from defects in material and manufacture, as represented or guaranteed by the sellers.

The subject-matter of the bond, the purpose for its execution, the relation of the parties, and the object to be accomplished, as may fairly be gathered from the allegations of the complaint, are all such as to make it obvious that the nature and design of the obligation sued upon was for the manifest purpose of securing the city as vendee against loss in the amount paid as a purchase price for certain fire hose, in the event the article purchased proved to be faulty or unsound, or failed to come up to the representations or "guarantee" made by the vendor, the principal in the bond.

The appellants interposed demurrers to the complaint and filed a special plea on the theory that the condition of the bond set up in the complaint and alleged to have been breached had been fully complied with by merely making a delivery and guaranty, and that no breach of any condition of the bond, as averred in the complaint, would be occasioned by a failure of the hose to be free from defects of material or manufacture or to withstand the stipulated pressure. The court very properly overruled these demurrers to the complaint attacking it on this ground. The contention of the appellants that the condition of the bond as alleged in the complaint, and a breach of which is declared on, only provided for a bare delivery of the hose and a...