Maas v. Montgomery Iron Works

• Decision Date: 19 November 1889
• Citation: 88 Ala. 323,6 So. 701
• Parties: MAAS ET AL. v. MONTGOMERY IRON WORKS.
• Court: Alabama Supreme Court

6 So. 701

88 Ala. 323

MAAS ET AL. v. MONTGOMERY IRON WORKS.

Supreme Court of Alabama

November 19, 1889

Appeal from city court of Selma; J. HARALSON, Judge.

White & White, for appellants.

S.W. John, for appellee.

CLOPTON J.

The plea of the statute of frauds having been abandoned, the general issue and the failure of consideration are the only pleas filed to the action, which was brought by the appellee to recover the price of an engine and boiler shipped to W. J Stoddard at the request of appellants. The presiding judge to whose decision the facts were submitted without the intervention of a jury, found there had been a compliance on the part of the plaintiff with the agreement with Stoddard to put the engine and boiler, which were second-hand, in good running order. Notwithstanding the testimony may be regarded conflicting in some respects, on consideration of the entire evidence, we concur in this conclusion. Plaintiff sent a competent machinist to put up the machinery, who testifies that he had no difficulty in running it, and left it in good condition. A short time afterwards the person placed in charge by Stoddard attempted to run it, and to gin cotton, without succeeding in getting the inspirator to work so as to force sufficient water in the boiler. The person operating it attempted to fix it, and was stopped by Stoddard, because, as he says, he did not appear to understand it, and something wrong might be done. A machinist, who was sent for by him, examined the machinery, found the boiler leaking, did some work on the engine,-such as fixing connecting rod brasses, and some packing and tightening bolts,-but refused to do any on the boiler. After this it was used for some time. Stoddard still not being satisfied, plaintiff sent another machinist, who worked on the engine and boiler. They were thereafter used to gin, not only the crop of that year,-1886,-but also the crops of the two succeeding years, without any repairing, so far as shown, except to put in new tubes in 1888. After two crops had been ginned, plaintiff proposed to take the machinery back, release Stoddard and the defendants, and remove it without expense to them or either of them. This proposition was rejected. Its rejection, and the long use of the engine and boiler, manifest that plaintiff had put them in a condition reasonably suitable to the purposes for which they were purchased. Though there is some testimony tending to show that the engine had not been run sufficiently long after it was first put up to produce injury, the inference from the entire evidence is, that the subsequent leaking and the defective working for the inspirator were caused by inexperienced and unskillful handling on the part of the persons placed in charge, who did not understand how to operate an engine; or that, at any rate, the last machinist sent by plaintiff put the engine and boiler in good running order.

The correspondence set forth in the bill of exceptions constitutes the contract between plaintiff and defendants. Stoddard proposed to purchase, and plaintiff to sell, the engine and boiler, at $250, agreeing to put them in good running order. The price was agreed on, but plaintiff declined to sell on his responsibility, and required security for the purchase money. A few days thereafter defendants proposed in writing to give their acceptance, payable at 90 days, if the engine and boiler were fully guarantied. On being notified that the proposition was accepted, and that the machinery would be ready for shipment on the succeeding Monday, defendants wrote: "You can make him [Stoddard] the shipment, comply with your contract with him, and the paper will be forthcoming." Plaintiff shipped and put in place the engine and boiler, and so informed defendants, requesting them to make out the acceptance as of October 4, 1886,-the...