Vulcan Iron Works Co. v. Roquemore

• Decision Date: 21 December 1909
• Docket Number: 1,926.
• Citation: 175 F. 11
• Parties: VULCAN IRON WORKS CO. v. ROQUEMORE.
• Court: U.S. Court of Appeals — Fifth Circuit

175 F. 11

VULCAN IRON WORKS CO. v. ROQUEMORE.

No. 1,926.

United States Court of Appeals, Fifth Circuit.

December 21, 1909

This is an action for damages for the breach of a contract of sale. It was brought by the defendant in error (the plaintiff below) against the plaintiff in error (the defendant below) in the city court of Montgomery, and was duly removed on the ground of diverse citizenship to the Circuit Court.

On January 13, 1905, the Vulcan Iron Works Company, an Ohio corporation, sold to John D. Roquemore, a citizen of Alabama a shovel called the 'Baby Giant.' For convenience it will hereafter be called the 'first shovel.' Afterwards, on December 22, 1905, the Vulcan Iron Works Company (hereinafter called the 'seller') sold to Roquemore (hereinafter called the 'buyer'), by a written contract of sale, a machine called the 'Little Giant Special Steam Shovel.' This machine will hereafter be referred to as the 'second shovel.' The following is the contract of sale:

'Memorandum of Sale of Little Giant Special Steam Shovel No. . . . .

'To John D. Roquemore, Montgomery, Alabama:

'We, The Vulcan Iron Works Company, of Toledo, Ohio, sell to John D. Roquemore of Montgomery, Ala., one Little Giant Special Steam Shovel No. . . . on trucks, our standard make, built according to the specifications hereto attached, and which is made a part of this contract, said specifications being changed so far as required to put said shovel on standard trucks in place of traction wheels.

'We agree to ship the same on or before March 1st, 1906, barring, of course, delay that may be caused by accident, strikes or other calamities, unavoidable, and beyond our control.

'Price for said steam shovel is $6,250.00 net f.o.b. car Toledo, Ohio, freight paid by John D. Roquemore on delivery at destination and purchase price, $6,250.00, to be paid $1,500.00 cash upon the acceptance of said shovel and balance by the delivery to said the Vulcan Iron Works Company at the place where the same now is, a certain Baby Giant No. 926, delivered to said Roquemore in pursuance of a certain contract between the parties dated Jany. 13, 1905.

'We will send a competent steam shovel engineer at our own expense for 15 days of 10 hours each from time of his leaving Toledo until his return thereto, proceeding without delay en route, this date to be when he leaves Toledo in response to your wire notice of arrival of said steam shovel at destination. All other expenses and completing task of getting steam shovel to operation and trial test you are to bear. This engineer is to superintend the unloading and to operate the engines of said Steam Shovel No. . . . to demonstrate same to be as herein represented.

'If after said trial and test, said Little Giant Special Steam Shovel has proven to be as guaranteed herein, you are to accept same, and relieve us from further expense.

'If it is found necessary for our engineer to remain longer than the said fifteen days, you are to pay us $5.50 for each day you retain him.

'If during said trial test, any part of said Little Giant Special Steam Shovel shall prove defective, or any change necessary to be made, we are to have a reasonable time to replace such parts or to make such changes as we find necessary. If we then fail to demonstrate our guarantee, we will remove said Little Giant Special Steam Shovel at our expense, and refund any money having been paid to us by you on purchase of same and you hereby waive all claim for possible damage or expense.

'It is further agreed that the title and ownership of said Little Giant Special Steam Shovel shall remain with and be the property of the Vulcan Iron Works Company until payment is made as noted herein.

'Upon your acceptance of this proposition it is to be and constitute a mutual cancellation of all obligations between said parties to this date.

'Montgomery, Ala., Dec. 22nd, 1905.

'The Vulcan Iron Works Company,

'Accepted:

Per W. H. A. Read, Vice-President.

'John D. Roquemore.'

The declaration claimed $5,000 as damages for the breach of the contract, which was set out in full. It concluded with the following averment and charge of breach:

'And plaintiff avers that the specifications mentioned in and attached to the said contract called for and required, among other things, a boiler, which was to be used as a necessary part of said shovel, to wit, fifty-four inches in diameter and eight feet six inches in height, also to have attached thereto a boiler feed called a Pemberthy injector.

'And plaintiff avers that the defendant violated the terms of said contract on its part, in that it failed to ship to the plaintiff a shovel with a boiler of the dimensions as required by the said contract and specifications thereto attached; that the defendant did, on or about the first of March, 1906, ship to the plaintiff a steam shovel and a boiler to be used in connection therewith and as a part thereof, but which was materially different from the boiler called for in said contract; that the boiler so shipped was of dimensions of, to wit, forty-eight inches in diameter and seven feet six inches in height and was totally incapable of operating the said shovel; that said boiler did not have attached thereto a Pemberthy injector, as by the said contract called for; and that one of the engines in connection with and to be used in the operation of the said shovel and as a part thereof was defective, in that there was an opening or hole in the steam chest of said engine, made when the said engine was casted, so that the steam escaped therefrom, rendering the same incapable of being operated, and plaintiff refused to accept said shovel so shipped; that plaintiff paid the freight on said shovel, thus shipped, from Toledo, Ohio, to Montgomery, Ala., amounting to, to wit, $500.00, which has never been repaid to plaintiff; that the value of the shovel stipulated to be delivered by plaintiff to defendant on the delivery and acceptance by plaintiff of the shovel agreed to be shipped in accordance with said contract was, to wit, $1,500.00, all to the damage of the plaintiff as aforesaid, wherefore plaintiff sues.'

The seller, among other pleas, filed the following:

'(6) And for further answer * * * the defendant says that the plaintiff should not recover for the alleged breach of the contract as complained of in said complaint, for that in the said contract which in said complaint is alleged to have been entered into between the plaintiff and the defendant on, to wit, December 22, 1905, a copy of which said contract is hereto attached as Exhibit A, and made a part of this plea with leave to refer thereto, there was contained the following paragraph:

''If during said trial test, any part of said Little Giant Special Steam Shovel shall prove defective, or any change necessary to be made, we are to have a reasonable time to replace such parts or to make such changes as we find necessary. If we then fail to demonstrate our guarantee, we will remove said Little Giant Special Steam Shovel at our expense, and refund any moneys having been paid to us by you on purchase of same, and you hereby waive all claims for possible damage or expense.'

'And defendant says that after the said Little Giant Special Steam Shovel was shipped by the defendant to the plaintiff, as provided for in said contract, and was received by the plaintiff, the defendant sent, in response to a wire notice of the plaintiff of the arrival of said steam shovel at Montgomery, a steam shovel engineer for the purpose of getting the steam shovel into operation and making a trial test of said steam shovel, and that the said steam shovel engineer proceeded to Montgomery, and upon arriving there proceeded to operate the said steam shovel and to have a trial test of said Little Giant Special Steam Shovel shipped to the plaintiff under the contract hereinabove referred to; and that during the trial test so had and conducted by said steam shovel engineer sent by the defendant, it was discovered that the boiler on said steam shovel was smaller than the one alleged to have been contracted for by the plaintiff, and that said boiler did not have attached thereto a Pemberthy injector boiler feed.

That thereupon and during the trial test of said steam shovel, the defendant, as it had a right to do under said provision contained in said contract as hereinabove set out, offered to replace such parts or to make such changes as were necessary and make said Little Giant Steam Shovel accord in every respect to the specifications of said contract, but that the plaintiff refused to allow and would not permit the defendant to replace such parts as were defective or to make such changes as were found necessary by the defendant to make said Little Giant Steam Shovel in accordance with the contract which was entered into between the plaintiff and the defendant. Wherefore the defendant says that the plaintiff is not entitled to recover in this suit.'

The seller's eighth plea stated the same facts substantially as set out in the sixth plea, and then alleged that it 'offered to take back the shovel which was delivered to the plaintiff and to give the plaintiff a new shovel in every respect in accordance with the contract made by the plaintiff with the defendant and in accordance with the plans and specifications, but that the plaintiff refused to allow and would not permit the defendant to take the shovel back and give to the plaintiff in place thereof a new shovel in accordance with the plans and specifications and in accordance with said contract. Wherefore the defendant says that the plaintiff is not entitled to recover in this suit.'

Demurrers were interposed to these pleas alleging various grounds to the effect...