Morrilton Ice & Fuel Co. v. Montgomery

• Decision Date: 03 March 1930
• Docket Number: 184
• Citation: 25 S.W.2d 15,181 Ark. 180
• Parties: MORRILTON ICE & FUEL COMPANY v. MONTGOMERY
• Court: Arkansas Supreme Court

25 S.W.2d 15

181 Ark. 180

MORRILTON ICE & FUEL COMPANY v. MONTGOMERY

No. 184

Supreme Court of Arkansas

March 3, 1930

Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor affirmed.

Decree affirmed.

Edward Gordon and J. W. Johnston, for appellants.

W. P Strait, for appellees.

OPINION

KIRBY, J.

This appeal is prosecuted from a decree for the balance of the purchase money due for machinery or apparatus sold to appellants, and foreclosure of materialman's lien therefor.

Appellees an Illinois corporation engaged in business in Chicago, upon receipt of a telegram from appellants, stating: "In market for sterilizer. Send representative at once. Wire." Sent its agent to appellants engaged in the manufacture of ice at Morrilton, and sold them, under the terms of a written contract, "One (1) SEL 3 Hartman electrolytic sterilizer 400/500 G.P.H. 2020."

The contract recites the terms of sale and payment, and "the seller guarantees the Hartman electrolytic water sterilizer to deliver water clear of suspended matter, and of such clearness as to conform to the platinum wire test of the American Public Health Association, and that water from this apparatus shall conform in every respect to the limits laid down by the United States Treasury Department, Bureau of Public Health, covering potable waters. Also bacterial count when plates are kept clean." (Words in italics inserted by purchaser before signing.) It also recites that the guaranty is made with the understanding that the water purifying apparatus shall be operated according to instructions furnished, and for the making of any tests desired by the purchaser, who is to furnish samples of the water for tests, etc., within 30 days after the installation of the apparatus or sterilizer. It recites further "that it is agreed that all agreements and understandings, verbal or written, made or had respecting the machine sold, are abrogated, superseded and canceled by this contract, and at the time of the execution of same." After the execution of the contract and before the arrival of the machine sold at Morrilton, appellants sent another telegram to appellees asking about the purchase of containers for selling "electrified water." During the negotiations for the sale of the sterilizer, one of the members of appellant's firm went with appellee's agent to examine a sterilizer of like kind in operation at Atkins, Arkansas, and after returning from the inspection of it closed and executed the contract of purchase. The title to the machine was retained by the seller until the purchase money was paid, and the contract also provided for its installation by the seller.

When the machine arrived, however, appellants, without notice to appellees, had it installed in their new ice factory, and, upon later complaint of its unsatisfactory operation, appellees sent its engineer to correct any condition that might interfere with the proper operation of the machine, which was done to the satisfaction of appellants. Appellants thereafter refused to execute the notes for the remaining purchase money due, $ 1,510 and interest, under the terms of the contract and within 90 days from furnishing the machine or sterilizer, installed in the new ice plant, appellees brought this suit for collection of the balance of the purchase money due for the sterilizer, for enforcement of a vendor's lien thereon and a materialman's lien against the plant, making the proper allegations in its complaint therefor and exhibiting the contract therewith.

Appellants denied the allegations of the complaint, and alleged that the appellee's agent procured the contract of sale upon false and fraudulent representations to appellants, "that said machinery would remove from the water all bacteria, and would also remove from the water all iron in substance or nature and enable the defendants to reduce the core in each block of ice to a feather edge which would purify the water and greatly reduce the expense of the defendants in operating...