Rehearing
Denied June 29, 1912.
Appeal
from Circuit Court, Butler County; A. E. Gamble, Judge.
Action
by the Walshe Manufacturing Company against the W. T. Smith
Lumber Company. From a judgment for defendant, plaintiff
appeals. Reversed and remanded.
Count 1
is as follows: "Plaintiff claims of defendant the sum of
$1,750 as damages for the breach of an agreement in writing
made and entered into by and between the plaintiff and
defendant on, to wit, the 1st day of October, 1908, which
said agreement is in words and figures as follows, to wit
'Proposal. From the Walshe Manufacturing Company
Pittsburg, Penn., October 1, 1908, to the W. T. Smith Lumber
Company, Chapman, Ala., Butler County--Gentlemen: We, the
Walshe Manufacturing Company, do hereby propose and agree to
furnish a partial equipment of W. & W. patent dry kiln
apparatus f. o. b. shipping point (consisting of one
vacuum-producing fan sufficient in size to operate the four
departments of dry kiln building as herein mentioned), and
license to use system in connection with four departments of
your present dry kiln building to be reconstructed by you
under our plans and instructions. Each compartment being
______ feet long, and ______ feet wide inside and ________
feet high above rails, arranged with three track rails and
for crosswise piling; to include plans and instructions for
the reconstruction of building and the installation of
apparatus under our patents. It is agreed that you are to
install above-named partial equipment (in accordance with our
instructions) in connection with your present system in one
or more departments as you desire for the purpose of test
said test to continue for a period of time not exceeding
sixty days from date, the kiln is ready to operate. At the
expiration of the sixty days' test, should the results
obtained by the use of our system fulfill our guaranty as
hereinafter mentioned, you are to pay us at once, as
consideration for the above-mentioned apparatus and license
to use same in the four departments aforesaid, the sum of one
thousand seven hundred and fifty dollars ($1,750.00). Also an
additional sum of four ($4.00) per day, transportation and
board for our mechanic to supervise the installation and
starting test of kiln. It is understood that the
reconstruction of building is simply to consist of
constructing center air flue, bulkheads or walls crosswise of
kiln near center of kiln; also returning air flue to return
moisture to kiln. It is further understood that there is to
be no change in the piping system. Guaranty: We guarantee the
material and workmanship of the above-specified partial
equipment to be first class in every particular, and we
further guarantee that when the kiln is reconstructed in
strict accordance with our plans and operated as per our
instructions and furnished with steam at 60 pounds pressure
at kiln to be capable of drying 1 inch by 16 feet pine lumber
in 48 hours (said kiln to be kept in continuous operation 24
hours per day), without adding to any defects the stock may
have when placed in the kiln, such as checking, mildewing
molding, or discoloring, and the material so dried will not
warp or twist to any greater extent than by out door piling.
It is understood that you are to furnish all the necessary
material for testing capacity of the kiln, material to be
green from the saw when placed in the kiln. Summary: It is
agreed that you are to furnish, in connection with all the
material now being used in the present kiln, engine of
sufficient capacity to operate the above-named fan, and labor
to reconstruct the building to receive the additional
apparatus and the necessary labor for installing the
circulating system, etc.; also furnish steam connection from
boiler to engine, all in accordance with our instructions and
to fully test the kiln in accordance with directions to be
furnished by us. In the event of the failure of the kiln to
do the work as guaranteed, you have given us due notice in
writing to that effect and afforded us the opportunity of
making any necessary corrections, and after such corrections
the kiln should still fail to work as guaranteed, you are to
reload the material furnished within ten days and return to
us. Upon receipt of bill of lading covering the shipment of
same in good condition, we will refund all money covering
freight charges paid by you, and also the amount of any cash
payments made to us, and further responsibility on our part
shall cease. It is agreed that, should you violate any of the
provisions of this agreement, then the right to return
apparatus shall be forfeited and you will pay to us as
liquidated damages the sum of money herein specified under
the heading "Price," the same as though you had
volunteered your acceptance in writing. Liability: The
purchasers are to assume all liability of loss from fire or
other sources from the time of delivery of the apparatus.
Date of shipment is contingent upon strikes, accidents,
delays of carriers or other causes unavoidable or beyond our
control. Shipment: Shipment will be made on or about October
15, 1908. Limitations: There are no conditions regarding the
proposal other than expressed herein.' This contract was
signed by the Walshe Manufacturing Company by its general
superintendent, after which was the following provision:
'We hereby accept the above proposition with services of
superintendent, and agree to be bound by all the terms and
conditions. Please ship to us at Chapman, Alabama. [Signed]
W. T. Smith Lumber Co., J. G. McGowin, Secretary.'
Plaintiff avers that said agreement had been broken by
defendant in this: That the plaintiff, in accordance with the
terms of said agreement, did furnish and ship to the
defendant the vacuum-producing fan named and described in
said agreement, and installed the same, in accordance with
the terms of said agreement, but that the defendant has
failed to pay said sum of $1,750 for the same and license to
use same, in accordance with the terms of said agreement, and
that said sum of $1,750 is due and unpaid."
The
third count adopts the first count down to and including the
agreement or contract, and adds: "Plaintiff avers that
in and by the terms of said contract it was agreed that,
should the defendant violate any of the provisions of said
contract, then the right to return apparatus should be
forfeited, and defendant should pay to the plaintiff as
liquidated damages the sum of money specified in said
contract for said apparatus, the same as though the defendant
had volunteered its acceptance in writing. And plaintiff
avers that the defendant did violate the provisions of said
contract in this: That in and by the terms of said contract
there was the following guaranty: [Here follows guaranty as
set out in contract.] And plaintiff avers that the defendant
violated said guaranty and the terms of said contract by
failing to furnish steam at 60 pounds pressure at the kiln,
so as to permit the drying of pine lumber in accordance with
said guaranty. Wherefore plaintiff says the terms of said
agreement were violated by the defendant, and plaintiff
thereby became entitled to liquidate damages herein claimed,
together with interest thereon."
The
first count was afterwards amended by striking out all of the
last paragraph thereof, and substituting therefor the
following: "And plaintiff avers that said agreement has
been broken by the defendant in this: That the plaintiff, in
accordance with the terms of said contract, did furnish to
the defendant the partial equipment of W. & W. patent dry
kiln apparatus mentioned and described in said agreement, and
did also furnish plans and instructions to defendant for
reconstruction of its dry kiln building, and for the
installation of said apparatus, in accordance with the terms
of said agreement; but that the defendant has failed to pay
said sum," etc., concluding as in count 1.
Count 3
was afterwards amended by striking out therefrom the words
beginning, "and plaintiff avers that the defendant
violated said guaranty," to the conclusion thereof, and
inserting in lieu thereof: "And plaintiff avers that,
although it furnished to the defendant the partial equipment
of W. & W. patent dry kiln apparatus, and plans and
instructions for the reconstruction of defendant's dry
kiln building, and the installation of said apparatus, in
accordance with the terms of said contract, the defendant
violated said guaranty and the terms of said contract by
failing to furnish said steam at 60 pounds pressure at the
kiln, so as to permit the drying of pine lumber in accordance
with said guaranty." And concludes as does the third
count before amendment.
The
fourth count is the same as the first down to and including
the contract, then sets out the substance of the guaranty,
and avers the failure, after said apparatus was installed,
and after it was claimed that it failed to work as
guaranteed, of the defendant to reload the material furnished
by the plaintiff to the defendant, and to return same to the
plaintiff, and alleges a retention by the defendant of the
material; wherefore liquidated damages are claimed.
The
fifth count sets up the contract and the guaranty, and
alleges a compliance by plaintiff with all the provisions of
said contract, and further alleges that after said apparatus
had been installed, and after the defendant claimed that it
failed to work as guaranteed, that the defendant failed to
reload within 10 days the material so furnished, and to ship
same to the plaintiff.
The
following charges were given at the instance of the
defendant:
(4)
"The court instructs the jury that, if they believe from
the evidence that defendant made two tests of pla...
