The Whitney Iron Works Company v. Reuss

• Decision Date: 01 February 1888
• Docket Number: 9882
• Citation: 3 So. 500,40 La.Ann. 112
• Court: Louisiana Supreme Court
• Parties: THE WHITNEY IRON WORKS COMPANY v. GEORGE B. REUSS

3 So. 500

40 La.Ann. 112

THE WHITNEY IRON WORKS COMPANY v. GEORGE B. REUSS

No. 9882

Supreme Court of Louisiana

February 1, 1888

APPEAL from the Twenty-second District Court, Parish of Ascension. Duffel, J.

David N. Barrow, for Plaintiff and Appellee.

E. N Pugh and R. N. Sims, for Defendant and Appellant.

Watkins J., Poche, J. and Todd, J., dissent.

OPINION

Watkins J.

This suit was brought to enforce specific compliance with the terms of a contract of sale, made to the defendant of certain machinery for the manufacture of sugar and molasses.

The same consisted of a five roll mill and an engine, with all the necessary gearing, fixtures and appurtenances to make it complete and fit it for manufacturing operations, and all of which are carefully detailed in the written specifications, which were submitted to the defendant and accepted by him on the 8th of May, 1884, with some slight modifications.

After enumerating with great particularity the length and diameter of the rolls; the thickness of the shells; the material and diameter of the shafts and journals; the fashion and pattern of the flanges; the character and composition of the bed-plates, cane knife, king-bolts, and juice-pans, among others, the specifications set out the following special covenants on the part of the corporation, viz:

1. That all material and workmanship shall be of first-class, and free from damaging defects.

2. That the work is guaranteed for one year under fair usage.

3. That the liability of the corporation is limited to repairing any defective, or broken parts, in the shortest possible time.

4. That the defendant is fully guaranteed against any infringement of patents.

5. That plaintiff will "erect all of said machinery in their shops, as far as practicable" in order that defendant, or his engineer, may inspect the same before shipment.

6. That said company will furnish a full set of blue-print drawings for the mill and its foundations.

7. That it will deliver all the machinery f. o. b. of steamboat in this city, and have same ready for shipment on, or before the 1st of September, 1884.

The price stipulated was $ 15,750, payable in four equal installments, for which the defendant consented to execute his promissory notes, payable respectively on the 20th of December, 1884, and February, April and June, 1885, and indorsed by John Reus.

The defendant agreed to furnish two of those notes when the machinery was ready for shipment, and the other two on the 1st of October, 1884.

The plaintiff company avers that the mill, engine and all the machinery were completed according to contract, and delivered in good order on a steamboat in the city of New Orleans for shipment; and that same were received by the defendant, and shipped to his Germania plantation, and erected in his sugar-house.

That, in conformity with the contract, the company previously erected said machinery, in its shops, and that it was there examined and inspected by John Reus and J. C. Lear, engineer, for the defendant; and same were by him accepted.

The company avers full compliance with all the stipulations of the contract, and that it is entitled to have and receive said notes from the defendant, who has failed to comply with his part of same, and has refused to furnish or deliver said notes, notwithstanding he has been repeatedly requested so to do; and prays judgment compelling defendant to comply therewith, and furnish said notes, and for a money-judgment against him for such part of same as shall become due during the pendency of this suit, with recognition of vendor's lien on the property.

The company also demands $ 794 as the value of extra work, and the restitution of certain tools and implements loaned to the defendant, or their alternate value.

The defendant pleads the general issue, and admits the execution of the contract; but denies that plaintiff has carried it out, on his part, in good faith. He avers further, that the company has done no act thereunder which entitles it to a specific performance, or the payment of the price.

He further avers that many parts of said machinery were constructed of defective material; that the workmanship was bad and rough; that scarcely any piece of machinery would fit after being transferred to the sugar-house; and that, after being therein erected, said machinery, as a whole, in the defectiveness of material and workmanship, "stood and stands as a reproach and disgrace to the prevailing improved methods and facilities for the construction of plantation machinery."

He denies that he, or any person for him, ever accepted any part of said machinery in plaintiff's shops in New Orleans, as alleged.

He avers that he discovered the defectiveness of portions of said machinery after same had been shipped, and promptly notified the plaintiff company and made complaint.

The answer there specifies, among others, the following defects in the mill and machinery, to wit:

1. That the blue-print drawings for the foundations were incorrectly made, and caused him a loss, in material and extra work, over $ 400.

2. That during the grinding season the bed-plate of the three-roll mill was broken, owing to the insufficiency of the foundation bolts and washers.

3. That both of the shafts of the two-roll mill became loose.

4. That the intermediate carrier failed to deliver the bagasse.

5. That five of the cogs in the cast-iron pinion -- which the contract required should be of steel -- were broken on account of the defectiveness of the material.

6. The juice-pan of the three-roll mill was made too short and narrow, in consequence of which the cane-juice ran over, and beyond the edge of the pan, and over the journals, and much of it was lost or wasted.

7. That the patent cut-off, or joy-valve, that was attached to the engine so that the steam could be cut off at any point of the stroke, would not work; nor would the reversing-lever operate well.

Defendant also avers that after much loss of time and great expense for labor he was compelled, in order to prevent the total loss of his crop of 1884, to employ and use said machinery to bear it off.

That through the fault and negligence of plaintiffs in the non-performance of its part of said contract, in the particulars specified, he has suffered damages to the extent of $ 10,000 for the year 1884, and a like sum for 1885.

That plaintiff's full and complete compliance with the terms of the contract was, and is, a condition precedent to his recovery of him; and that he refused to deliver to plaintiffs his notes on the ground that the machinery furnished was greatly defective, both as respects material and workmanship.

He prays judgment rejecting all of plaintiff's demands at his cost and for judgment in his favor on his reconventional demand.

The pleadings are quite elaborate and difficult of satisfactory analysis, but we have endeavored to furnish a fair and concise synopsis of the demands and counter-claims of the parties to this intricate and abstruse litigation.

It is apparent from the foregoing statement that the three important questions for determination are:

1. Was the workmanship and material of first class, and free from damaging defects?

2. Did the mill and machinery receive fair usage at the defendant's hands while same was in process of erection in his sugar-house, and while it was in his possession and being operated by him?

3. Did plaintiff company furnish a full set of blue-print drawings for the mill and foundations, as stipulated in the contract?

I.

The burden of proof is upon the defendant to establish that the workmanship and material were not first-class, but were affected with damaging defects; because the opportunity had been afforded him of inspecting the machinery in the company's shops before shipment.

Having accepted delivery of the goods, and shipped them to his plantation and erected them in his sugar-house, and used the same in bearing off the crops of 1884, 1885 and 1886, it became defendant's duty to reconcile his apparent and implied acceptance of the mill and machinery, resulting therefrom.

Defendant must also show affirmatively that the mill and machinery received fair usage at his hands while in course of erection and subsequent operation.

While the defendant, in his answer, does not formally demand the annulment of the contract, in whole or in part, on account of the vices and defects enumerated, it is in effect the action quanti minoris, set up by way of a reconventional demand.

II.

On the trial all of the various issues presented by the pleadings were traversed by the testimony of various witnesses -- experts and non-experts -- with the exception of defendant's reconventional demand, proof of which was resisted by the plaintiff company in the court below, and successfully, as the defendants' numerous bills of exception will show.

In this court his council urgently press them upon our attention and ask us to review them and reverse the rulings of the judge a quo.

They are to the effect that he tendered various witnesses by whom to prove, among others the following items of damage, viz:

1. Damages suffered by him during the grinding season of 1884, "on account of the bad condition of the machinery furnished by plaintiffs."

2. The loss and damage caused by, and which was the direct result of "the damaging defects in the machinery made by the plaintiffs."

3. The damages and injury sustained by reason of defective plans furnished by plaintiffs for the erection of the foundations of the mill and engine; and the defective construction of said foundation, and in cost of labor and material.

4. The cost of removing defective parts of said machinery out of the sugar house;...