S. F. Bowser & Co., Incorporated v. Kilgore

• Citation: 139 S.W. 541,100 Ark. 17
• Parties: S. F. BOWSER & COMPANY, INCORPORATED, v. KILGORE
• Decision Date: 03 July 1911
• Court: Arkansas Supreme Court

139 S.W. 541

100 Ark. 17

S. F. BOWSER & COMPANY, INCORPORATED, v. KILGORE

Supreme Court of Arkansas

July 3, 1911

Appeal from Dallas Circuit Court; Henry W. Wells, Judge; affirmed.

Affirmed.

J. T Richardson, for appellant.

A contract is to be construed as a whole, and the different sections thereof referring to the same subject-matter are to be read together. 93 Ark. 497. The intention of the parties is to be gathered from the whole instrument. 53 Ark. 58, 65; 23 Ark. 582. Under the purchaser's agreement not to countermand, and the vendor's guaranty tat the goods were as represented, and promise that, if for any reason the tank was defective or became so within one year, the vendor would "make it right" without charge and free of cost to the purchaser, it is obvious that the parties intended that if the tank did prove defective appellant could repair it or substitute a new one. This was all that was required of appellant, and the court erred in refusing to instruct the jury that if appellant offered to repair the tank or substitute a new one and appellee refused to permit it to do so, they should find for appellant. 20 L. R. A. (N. S.) 110; 35 Cyc. 604, note; Id. 171; Id. 137 (E); 24 Am. & Eng. Enc. of L. 119; 19 Enc. of Pl. Pr. 107 (H.); 119 Am. St. Rep. 956.

There having been no breach of warranty, the law permitting the rescission of contracts and return of goods for breach of warranty does not apply. See Webster's Dictionary "Breach"; 93 Ark. 454.

Morton & Morton, for appellee.

Appellant held itself out as competent to make a tank suitable for the uses for which it was being purchased. Appellee did not rely upon his own judgment, but upon the skill and judgment of appellant. The warranty was that the tank should be in perfect shape at the time of the sale, and also against damage in transportation. The tank proved to be defective which was a breach of the warranty, and the court correctly charged the jury that appellee had the right to rescind the contract and return the outfit. 48 Ark. 325; 53 Ark. 155; 72 Ark. 343; 73 Ark. 470; 77 Ark. 546; 81 Ark. 549; 83 Ark. 15; 90 Ark. 78; 102 Am. St. Rep. 615, monographic note; 110 108; 28 L.Ed. 86.

OPINION

WOOD, J.

Appellant was engaged in the manufacture and sale of gasoline oil tanks, that are used as receptacles for storing gasoline. They are put in use by burying them under the ground and allowing pipes to run from the tank to any part of the building that may be desired. The tank is buried outside of the building or beneath it, and the oil is pumped through the pipe, and can be measured out a gallon at a time. Appellee bought one of these tanks of appellant, agreeing to pay therefor the sum of $ 122 under a contract which contained the following clauses:

"It is agreed by the purchaser that this

order shall not be countermanded.

"We guaranty all our goods as represented in our catalogue; and if in transportation they get damaged so that they do not work correctly, report to us, and we will make them right without charge and free of cost to you. Furthermore, we warrant them to remain in perfect order for one year from date of invoice."

The tank was delivered to appellee and duly installed by him. It was found that the tank leaked, whereupon appellee wrote to appellant notifying it of that fact. After some correspondence, appellant sent its agent to have the tank examined. The tank was found to be defective in that it permitted water to leak into the tank. The appellant proposed to send appellee another tank, but appellee refused to receive another tank, giving as a reason therefor that the tank he had purchased was not fit for the uses for which he bought it. Appellee testified on this point that several of his customers had sent back the oil sold to them, stating that it had water in it; that the leaking of the tank "like to have ruined his gasoline trade; that about a gallon of water seeped in every twenty-four hours." He offered to return the tank, but refused to accept another tank in lieu of the one that proved to be defective. The agent of the appellant himself testified that when they took the tank up and filled it with water so as to give it a thorough test they found that at about the thirty-gallon mark there was a slight leak. The appellant proposed, after discovering the defective condition of the tank, to ship appellee a new tank free of charge, and also, if necessary, to allow for the expense of installing the same. This proposition was not satisfactory to appellee. Appellant brought suit for the purchase price of the tank, $ 122. The appellee answered, setting up that he had purchased the tank under the contract, two clauses of which have been set out above, and pleaded same in defense to the action. The court, after hearing the evidence, which developed substantially the above facts, instructed the jury as follows:

"The jury are instructed that by the terms of the contract the gasoline tank was expressly warranted to be in perfect order at the time of the sale for the purpose for which it was intended to be used, namely, the storage of gasoline for sale to customers and to so remain in perfect order for such purpose for a period of one year from April 13, 1910, the date of invoice; and if you believe from the evidence that said gasoline tank outfit was not in perfect order for such purpose at the time of sale or so became within one year from date of invoice under the contract, then the defendant had a right to rescind the contract and return the outfit; and if you believe that he has rescinded the contract and returned the goods, or offered to return the outfit, you will find for the defendant."

Other instructions were given to which objection was made, but the above instruction presents the issue under which the cause was tried, and a verdict rendered for the appellee.

The only question here is: what were the respective rights of the vendor and vendee under the clauses of the contract which we have set forth? It will be observed that the appellant warranted the tank to remain in perfect order for one year from the date of the invoice. He also guaranteed that the tank would be as represented; that is, that the tank would be useful for the purpose for which it was designed. The clause in the contract which permitted appellant to repair any defect that might be found in the tank and which permitted it to make "them right without charge and free of cost" related to such defects in the tank as were caused by transportation, and not to...