P.B. Yates Mach. Co. v. Taylor

• Decision Date: 28 October 1926
• Docket Number: 6 Div. 553
• Citation: 110 So. 396,215 Ala. 311
• Parties: P.B. YATES MACH. CO. v. TAYLOR et al.
• Court: Alabama Supreme Court

110 So. 396

215 Ala. 311

P.B. YATES MACH. CO. v. TAYLOR et al.

6 Div. 553

Supreme Court of Alabama

October 28, 1926

Rehearing Denied Nov. 26, 1926

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by W.D. Taylor and another against the P.B. Yates Machine Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded conditionally.

It is not error to refuse prayers or requested instructions covered or substantially covered by the instructions given.

The complaint is as follows:

"Plaintiffs claim of the defendant the sum of $5,000 as damages for the breach of a contract entered into by and between plaintiffs and defendant on, to wit, the 29th day of April, 1919, whereby defendant agreed to sell and deliver to plaintiffs a machine of the description and upon the terms and conditions as hereinafter set forth, to wit, one secondhand planer and matcher, type No. 91, to be delivered to plaintiffs, f.o.b. Hopkins, Ga., destination being White Plains, Ga., at and for the purchase price of, to wit, $4,200 on terms agreed upon in said contract, and as a part of said contract it was agreed that said planer and matcher was in first-class condition and would do work equal to new, and there were no broken or missing parts; and plaintiffs further allege that defendant breached said contract by failing to sell and deliver to plaintiffs a planer and matcher of said description in that said planer and matcher was not in first-class condition, would not do work equal to new, and there were broken or missing parts, to wit, the sprocket wheel and chain thereon were broken and worn, some of the teeth in the gear wheel were broken, one of the pulleys had been lost or removed from the counter shaft, another pulley had spokes broken out of it, the feed table thereon was in unsuitable condition to be used, the babbitting therein was old and worn, and said planer and matcher was in a greatly worn condition and was not such a machine as defendants had agreed to sell and deliver to plaintiffs, whereupon plaintiffs refused to accept said planer and matcher and so notified the defendant, and subsequent thereto, on, to wit June 18, 1919, at the request of said defendant, plaintiffs shipped said planer and matcher to Birmingham, Ala., from White Plains, Ga., and paid thereon the freight charges from White Plains, Ga., where said machine was located at the time the same was rejected by plaintiffs; and plaintiffs further allege that in and about their efforts to install said planer and matcher for operation, plaintiffs were put to much expense in and about hiring and paying for labor and were put to much expense by reason of not being able to operate and use said planer and matcher; and plaintiffs further allege that as a part of said contract defendant agreed to send at the expense of the plaintiffs a laborer or laborers for the purpose of assisting in installing said planer and matcher which laborer or laborers said defendant did send, and plaintiffs either paid or become liable to pay a large sum of money on account of the expense of a laborer or laborers and services performed by them; and plaintiffs further allege that they spent large sums of money for labor and material in connecting up said planer and matcher with pipes or piping and that after plaintiffs ascertained that said planer and matcher was not of the description agreed to be sold and delivered to plaintiffs by defendant, plaintiffs were forced to disconnect the same and to spend other large sums of money for labor and material in disconnecting said pipes or piping from said planer and matcher and connecting up the same with another planer and matcher which plaintiffs were compelled to buy; and plaintiffs further allege that they agreed to purchase said planer and matcher from defendant at said time for the purpose of dressing lumber, some of which plaintiffs had already sold, and of which facts defendant's sales agent, B.G. Williams, while acting within the line and scope of his authority, was informed by plaintiffs at the time said contract of sale was entered into, and that on account of said breach of contract by defendant and the unsuitableness of said planer and matcher for dressing said lumber plaintiffs were forced to comply with the terms of said sales of lumber by delivering to purchasers rough lumber, to wit 500,000 feet, which plaintiffs could and would have dressed before the delivery thereof if said planer and matcher had been of the description agreed upon, and plaintiffs thereby lost profits they would have made in the shipment and sale of dressed lumber instead of rough lumber, and plaintiffs further allege that they paid on said planer and matcher the freight charges, amounting to a large sum of money, for the shipment of said planer and matcher from the point of delivery to the railroad at Hopkins, Ga., to place of destination, to wit, White Plains, Ga., and that plaintiffs were put to much expense in and about loading said planer and matcher for shipment to Birmingham, Ala.; and plaintiffs further allege that all of their aforesaid expenses and damages were proximately caused by reason of said breach of contract by defendant in that defendant failed to sell and deliver to plaintiffs a planer and matcher of the description agreed upon in said contract, all to plaintiffs' great damage as aforesaid.

Pleas 3, 4, 5, and 6 are as follows:

"(3) For further answer to the complaint, defendant says that in and by the terms of the contract sued on, it was agreed between the plaintiffs and defendant that the property described in the complaint, and all subsequent additions thereto, should remain the property of the defendant until fully paid for in cash; that in case of rejection of said property, or failure to pay for same, that the plaintiffs should at once return and deliver the property in good order to the defendant, f.o.b. at Beloit, Wis.; that a retention of said property by the plaintiffs after 30 days from the date of shipment would constitute a trial and acceptance, and be conclusive admission of the truth of all representations made by the defendant, and void all contracts of warranty, expressed or implied. And defendant alleges before the expiration of the 30 days after the shipment of said property or

machinery, the plaintiffs rejected the same, as they were entitled to do under said contract, and delivered said property back to the defendant before the expiration of 30 days from the date of receipt of the property by the plaintiffs.

"(4) Defendant adopts the allegations of plea No. 3, and adds thereto, as a part thereof, the following: And defendant alleges that after the shipment of said property by the defendant to the plaintiffs, the plaintiffs and defendant entered into an agreement by which the said contract sued on was rescinded and said property redelivered to the defendant.

"(5) Defendant alleges that after the execution of said contract sued on, and after the delivery of the machinery therein described to the plaintiffs, the plaintiffs and the defendant entered into an agreement to rescind said contract, and under the terms of said agreement of rescission, the plaintiffs redelivered said property to the defendant, and the title to said property did not pass out of the defendant into the plaintiffs.

"(6) Defendant alleges that it was provided in substance in the contract sued on that the plaintiffs had the right for 30 days to try said machinery described in the complaint, and that within said time had the right to accept or reject same, and defendant alleges that within the said 30 days the plaintiffs elected not to take said machinery, but to return same under the terms of said contract."

These charges were refused to defendant:

"(25) In order for the plaintiffs to avail themselves of the rejection of the machinery on account of the alleged defects therein, they must have acted promptly, and if the plaintiffs became aware of the

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