Marx v. Kilby Locomotive & Machine Works

• Decision Date: 24 May 1909
• Citation: 50 So. 136,162 Ala. 295
• Court: Alabama Supreme Court
• Parties: MARX v. KILBY LOCOMOTIVE & MACHINE WORKS.

50 So. 136

162 Ala. 295

MARX v. KILBY LOCOMOTIVE & MACHINE WORKS.

Supreme Court of Alabama

May 24, 1909

Rehearing Denied June 30, 1909.

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Action by A. Marx against the Kilby Locomotive & Machine Works for breach of a contract. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The contract referred to in the opinion is as follows: "A Marx agrees to sell for joint account with the Kilby Locomotive & Machine Works one standard-gauge Forney type locomotive, with all parts belonging to same that he might have, and as seen and instructed by their representative this day on barge on the New Basin Canal, for the sum of $300 delivered on cars at Anniston, Alabama. The Kilby Locomotive & Machine Works agree to take charge of this locomotive on its arrival at Anniston, overhaul same thoroughly, and put it in first-class running order, furnishing all the necessary materials, labor, and whatever other incidental items that may be necessary to make this a complete and salable machine for the sum of $1,250, which amount shall be borne share and share alike by the named parties to this joint account. [ Here follows an agreement that the selling price shall be $2,500, and that either may sell at that price, but immediately notify the other, etc.] It is understood and agreed that as the work progresses the Kilby Locomotive &amp Machine Works will make to said A. Marx an account of the costs advanced, and the said A. Marx in turn is to reimburse the said Kilby Locomotive & Machine Works one-half of such amount as will be furnished by them, but not until the said A. Marx has been reimbursed with the original cost of the locomotive, which is $300." The breach declared on is that the defendant has failed and refused to pay plaintiff his share of this agreement.

The pleas are as follows: "Defendant avers that, after it had received said locomotive and proceeded to make repairs upon the same to the extent of about $300, it was ascertained that there were inherent and hidden defects in said locomotive, which destroyed said locomotive as a commercial proposition and rendered it worthless, except for scrap iron and that it would have cost more than $2,500 to have made the necessary repairs and to have made it salable. Defendant further avers that these defects in said locomotive were latent, and could not have been discovered by the exercise of reasonable diligence until the said sum of about $300 had been expended in repairs, and until the defendant had gotten to see the inside of said locomotive, when it was then ascertained that it was worthless and fit only for scrap iron. Defendant further avers that the expenditure of the maximum sum of $1,250 in repairs, which was all it was authorized by said contract to have expended in repairing said engine, would not have repaired said locomotive, or made it marketable, or made it more valuable than mere scrap iron and that it would have taken about $3,000 or more to have made said engine marketable, and then it would have been worth only about $2,000 or $2,250, and would then have been a losing investment for both plaintiff and defendant. And defendant further avers that it notified plaintiff's general manager and agent, Edward Marx, who came to defendant's shops and inspected said...