Sauerman & Ball v. Simmons

• Citation: 86 S.W. 429
• Parties: SAUERMAN & BALL v. SIMMONS.
• Decision Date: 25 March 1905
• Court: Supreme Court of Arkansas

86 S.W. 429

SAUERMAN & BALL v. SIMMONS.

Supreme Court of Arkansas.

March 25, 1905.

Appeal from Circuit Court, Pope County; Wm. L. Morse, Judge.

Action by C. H. Simmons against Sauerman & Ball. From a judgment for plaintiff, defendants appeal. Reversed.

Appellee brought suit before a justice of the peace in Pope county, alleging in his complaint that he purchased a pump and fixtures from appellants, and paid therefor $35 in cash, upon the representation of appellants that it would lift water 35 feet on a straight lift; that it would not work as represented, and by reason thereof he had been damaged in the sum of $35 paid for the pump, and in loss of labor of men and teams, and other items; and praying judgment for $97.14 and costs. Appellants answered, admitting the sale of the pump for the price named, but denying that they had represented it would lift water 35 feet in a straight lift, or made any false representations in regard to same, or that appellee had been damaged by reason of the failure of the pump to do the work it was by them recommended to do, either in the sum alleged or any other sum. They further allege that the pump was purchased and paid for after a full inspection by appellee, and without any fraud, warranty, or false representation on the part of the appellants. There was judgment for appellants in the justice's court, from which appellee appealed to the Pope county circuit court. There judgment was for appellee, and this appeal was taken.

On the trial in circuit court, the following facts were testified to, and there is but little variance, and no material conflict, in the evidence. Briefly stated, the facts are that the appellee went to the shop of the appellants to buy a mine pump. Was told they had none. Stated that the shaft of his mine was 26 feet deep, and he had been getting the water out of his mine with an inch and a half steam jet, and it took about an hour and a half to get it out. Was told that a steam jet was his cheapest way to get it out, but complained that it took too long. Was then told by Sauerman that they had a secondhand double-action pump, which had been used against 80 pounds steam pressure, filling boilers, that would throw the water out of his mine in about half the time. He wanted to see it. It was shown him, and he was told the price was $35. Sauerman says appellee seemed anxious to get it, but he told appellee he would not let it go until he tried it, to see if it worked all right. Sauerman then, with the assistance of Frank Davenport, connected the pump with their steam boiler, and, with water in a tub kept for that purpose, tried the pump—the water in the tub being about 3 feet from the pump—and it worked well. Appellee says that Sauerman told him the pump would lift the water out of his mine, and would lift water 33 feet, and on this representation he bought the pump, paid for it, took it to his mine, and tried to get the water out of his mine, but it would not work. Appellant Sauerman was asked by appellee, while they were trying and examining the pump before the purchase, "how far a pump would lift water," and he told appellee that 33 feet was the limit for raising water where the resistance depended on atmospheric pressure, but did not tell him this pump would raise water 33 feet. He did not tell appellee "that the pump would lift the water out of his mine when placed at the top of the shaft, or at any other place, but down at the sump at bottom of shaft." Appellant Sauerman also testified that the pump was opened up, and the manner of its working explained to appellee. It was explained to appellee that, if the pump was properly connected "at the sump," it would throw the water, after it passed the plunger, a distance of 100 feet. Appellee, after examining the pump, said he was not a machinist, but had considerable experience with machinery and pumps, and was "easy to catch on to any machinery, and could manage it." Sauerman said that appellee said he wanted the pump down close to the water, and would need about three feet of suction or receiving pipe, and they gave him that amount, with the proper fittings, etc. Appellee testified that he set the pump at the top of his shaft at first, the water being about ten feet deep in the shaft, and, finding it would not work there, he put it on the caging used in the shaft, down near the water, and it would work for a while, and then would have to be let down near the water, and, to make it work, he would have to work a lever used for starting it; and, finding it would not work all right, he wrote to appellants to know what they were going to do about it. The correspondence between appellants and appellee concerning...