W.T. Adams Mach. Co. v. Turner

• Decision Date: 24 May 1909
• Citation: 162 Ala. 351,50 So. 308
• Parties: W. T. ADAMS MACH. CO. v. TURNER.
• Court: Alabama Supreme Court

50 So. 308

162 Ala. 351

W. T. ADAMS MACH. CO. v. TURNER.

Supreme Court of Alabama

May 24, 1909

Rehearing Denied June 30, 1909.

Appeal from Circuit Court, Madison County; D. W. Speake, Judge.

Action by H. C. Turner against the W. T. Adams Machine Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The issues on which the case was tried, together with the facts of the same, sufficiently appear in the opinion of the court. The following charges were refused to the defendant: (1) General affirmative charge. (2) "It is the duty of the jury to look at the time when the plaintiff made complaint to the defendant to determine whether any defect existed in the engine and boiler at the time the defendant sold the engine and boiler to the plaintiff." (3) "Under the terms of the contract offered in evidence the plaintiff had no right to purchase materials or employ labor and charge the defendant with the same without first giving the defendant an opportunity to furnish said material and labor in the repair of the engine and boiler." (4) "Neither count of the complaint avers that the plaintiff sustained any injury in the alleged breach of warranty in the sale of the engine and boiler, and without an averment of injury the jury cannot by their verdict assess damages against the defendant." (5) "It was the duty of the plaintiff within 10 days after the receipt of the boiler to examine it, and if on such examination the scales could have been discovered in the boiler, the facts should have been reported in writing to the defendant; and if the jury find from the evidence that no such examination was made the plaintiff is not entitled to recover damages for any such defect." (6) "Under the terms of the contract executed by the parties to this action, it was the duty of the plaintiff within 10 days after the machine was received to give notice in writing to the defendant of any defect in the engine and boiler sold by the defendant to the plaintiff; and if the jury find from the evidence in this case that the plaintiff did not give such written notice within 10 days from the day the goods were received, the plaintiff cannot maintain this suit, and the verdict of the jury should be for the defendant."

Cooper & Cooper, for appellant.

S. S Pleasants and Lanier & Pride, for appellee.

McCLELLAN J.

Action by vendee against vendor for breach of warranty in respect of machinery, engine, and boiler.

Unless controlled to the contrary by the legal questions to be determined, it is practically conceded by counsel for appellant that the issues were for the jury's decision.

The main legal inquiry arises over the construction of the written contract between the parties for the purchase of the machinery. One of the presently important features of the instrument is this: "It is agreed that the date for delivery, whether express or implied, is subject to delay caused by strikes, fires, accidents or cause beyond the control of W. T. Adams Machine Company, and if anything is found short, broken, defective, or not as specified, notice thereof shall be given in writing to said company within ten days after machinery is received by me (or us) that said company may correct same, or same shall not be allowed, and no claim for any material furnished or work done by me (or us) shall be allowed as said company reserves the right to furnish said material or work." The other important feature, following the word "warranty," which is in large type, is this: "The above-described machinery is warranted to be made, or that it will be made of, good material, and when correctly and properly set and adjusted that it will do as good work as ordinary machinery of same class and size." The complaints against the machinery's perfection, said by the plaintiff to have wrought a breach of the general warranty quoted, consisted (1) That the wrist pin on the crank shaft of the engine was not true, thereby causing the engine to knock, at times violently; (2) that the boiler would not produce the requisite pressure of steam for one of its class--the result claimed being that the machinery failed, though properly installed and operated, to do the work of other machinery of like class and size. No written notice within 10 days after the receipt of the machinery of the imperfections stated having been given, as was conceded by the plaintiff, the appellant contended below, and does here, that the plaintiff, by the terms of the contract, could not maintain this action; the legal effect of the stipulation being to condition a claim for a breach of the quoted express warranty contained in the contract upon an examination of the machinery within the time specified and the giving of written notice to the company of any of the imperfections enumerated in the provision discovered about the machinery. We cannot agree with counsel in the stated insistence. Our reasons will be briefly set down:

The structure of the contract gives no intimation that the comprehensive warranty written in it is qualified to the extreme degree to which the insistence leads, viz., as a condition precedent to the availing, upon...