Western Cabinet & Fixture Manufacturing Co. v. Davis

• Decision Date: 13 December 1915
• Docket Number: 52
• Citation: 181 S.W. 273,121 Ark. 370
• Parties: WESTERN CABINET & FIXTURE MANUFACTURING COMPANY v. DAVIS
• Court: Arkansas Supreme Court

181 S.W. 273

121 Ark. 370

WESTERN CABINET & FIXTURE MANUFACTURING COMPANY v. DAVIS

No. 52

Supreme Court of Arkansas

December 13, 1915

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

Judgment affirmed.

A. C Cunkle, George W. Dodd, New, Miller, Carmack & Winger, for appellant.

Frederic O. Berge, of counsel.

1. The written instrument constituted the entire and complete contract between the parties and no proof of prior statements or representations of appellant was admissible. No parol warranty could be engrafted upon the written contract. 83 Ark. 105; 97 S.W. 681; 80 Ark. 505-8; 104 Ark. 488; 83 Id. 240-2; 73 Id. 542; 60 Id. 387.

2. The burden was on the plaintiff and he was entitled to open and close the argument.

3. It was error to submit to the jury, as a question of fact whether there was an implied warranty or not of suitableness etc. That was a question of law for the court. The contract was for an article known, described and definite in commerce. It was sold and installed. There was no express warranty in the contract and none could be implied, or supplied by evidence. 45 Am. Dec. 230; Suth. on Dam. (3 ed.) 1950-2; 67 N.J.L. 153; 3 M. & W. 390; 42 N.H. 165; 34 N.Y. 118; 4 Johns. 421; 68 L. R. A. 441; 6 Id. 392; Leake on Cont. 404; 110 U.S. 212; 178 F. 806; 79 Id. 43; 141 U.S. 510; 137 F. 332; 80 Ill. 477; 98 Ark. 482; 94 Id. 282; 64 N.Y. 411.

4. The court erred in its charge as to the measure of damages.

Jno. P. Woods and Read & McDonough, for appellee.

1. Appellee's cross-complaint was sufficient. It set up all that was necessary as a counter-claim based on false representations. 60 Ark. 281; 38 Id. 334; 60 Id. 387; 73 Id. 542; 104 Id. 388; 80 Id. 505; 47 Id. 164.

2 As to the measure of damages, the court, as far as it went, properly charged the jury. The true measure is the difference between the value of the defective article and one which is free of defect. 95 Ark. 492; 47 Id. 166; 33 Kans. 491; 37 Mich. 179; 31 Minn. 165.

3. The burden was on defendant and he was entitled to open and close. Kirby's Dig. § 3107, 6196; 82 Ark. 331; 85 Id. 123; 74 Id. 607; 61 Id. 627; 59 Id. 140; 58 Id. 556.

4. There was an implied warranty that the fountain was a fit and merchantable article and reasonably fit for for the purpose for which it was intended, made and designed. 48 Ark. 325-330; 53 Id. 155; 73 Id. 470; 72 Id. 343; 77 Id. 546; 81 Id. 549; 83 Id. 15; 90 Id. 78; 100 Id. 17; 28 L.Ed. U.S. 186; 2 Man. & G. 279; 3 Id. 868; L. R. 3 Q. B. 197; 21 N.Y. 552; 11 Oh. St. 53; 27 Wisc. 152; 8 Blackf. 318; 106 Ala. 377; 109 Tenn. 67; 62 Am. St. 88; 77 Me. 457; 77 S.W. 1011; 45 S.E. 418; 72 N.W. 369; 73 Id. 554; 74 S.W. 12; 91 Am. Dec. 346; 102 Mich. 221; 149 N.Y. 144; 141 U.S. 510; 15 Am. L. Reg. 417; 77 Ark. 343, etc.

OPINION

SMITH, J.

This suit was brought to enforce the payment of the balance alleged to be due upon a contract for the sale and installation of certain drug store fixtures and a soda fountain. The contract price was $ 5,100 of which all had been paid except the sum of $ 2,311.26.

Attached to the complaint as an exhibit thereto were the "Specifications for Set of Drug Fixtures and Soda Fountain." These specifications described the various fixtures and the fountain. The specifications for the fountain gave the dimensions and, among other things provided:

"Working apparatus to be composed of two German silver units, each to have 10 syrup pumps, 4 crushed fruit jars, 4 counter service goose necks, one of which will be connected with city water, two ice cream cabinets, two cold storage compartments, two drain boards, two disher vats, two spoon vats, 4 refrigerator drawers, one chipped ice receptacle, one rinsing tank, and one tumbler washer brush, each of the above units to be our regular Western '30' iceless.

These specifications, which were accepted by appellee, contained no express warranty other than that "all work to be done in a good and workmanlike manner."

Appellee admitted the acceptance by him of the specifications set out and the installation of the fixtures, and that there was due under the contract the sum sued for. He alleged the existence of an implied warranty as to the serviceability of the fountain, and the breach of this warranty, and he further alleged that the soda fountain was represented to be a workable, practicable, and valuable soda fountain, whereas in truth and in fact it was not such a fountain, and that he was induced to sign the contract of purchase upon the representation that said fountain was of the value named in the contract, and he relied upon said representations, whereas said representations were untrue, and were known by appellant to be untrue at the time they were made, and that the fountain was not of that value, but was worthless and without any value whatever. There was a counter claim for the damages alleged to have been sustained as a result of the false representations and deceit practiced upon appellee and an enumeration of damages thus sustained which exceeded the price of all the fixtures. Various pleadings and motions were filed which we need not here set out.

Over appellant's objections and exceptions evidence was offered in support of the allegation that the fountain was not fit for the uses for which it was purchased. The evidence is in hopeless conflict, and we will not attempt to reconcile it, but will assume, as we are required to do in testing its sufficiency, that the jury accepted the evidence offered in appellee's behalf where it conflicted with that offered by appellant.

It was testified that an iceless fountain was "a brine system for keeping the soda fountain cool is an iceless fountain, and where you put ice on your coolers is an ice fountain."

One of the principal witnesses in the case was a Mr. Glenn, who was the originator of the principle sought to be put in operation in this fountain. Mr. Glenn negotiated the sale of this fountain to appellee, and testified generally that the fountain was what it purported to be, and was usable as such. On his cross-examination, however, he admitted that this system was an experiment, and that the fountain had not done what he thought it would do, and that in saying it was a usable fountain he meant that a person could go ahead and use it by putting ice in the drinks if they were not drawn cold enough. It was admitted that the company which manufactured this fountain had only been so engaged for seven or eight months, and that while a number had been sold they were not in general use. It was also shown that a patent had been applied for, but for some reason which is not made plain no patent was ever issued. It was also shown that the company had ceased to manufacture the fountain, but this was explained by the statement that the company's plant had burned and competitors sold on such long terms of credit that it was not thought advisable to rebuild the plant. It was admitted that in appearance the fountain was all any one could ask, but it was claimed in effect that this was its chief virtue. It was shown that the fountain possessed the necessary receptacles for the fruits, flavors, condiments, and other accessories, but it was also shown that it consumed an abnormal quantity of ice and failed to cool itself properly, as a result of which there was an expensive loss of fruits amounting at times to as much as $ 10.00 a day on that account alone. It was shown that certain coils were removed, and appellant complains of this action and explains that these coils were an essential part of the plan of the fountain. But it was shown that a long continued effort had been made to operate the fountain with the coils retained, and a witness testified that every plumber in Fort Smith had worked with them and the fountain, but finally the coils were removed for the reason that "the material in the coils was such they could not be operated in the fountain without constant leaks. There was nothing like such leaks in the fountain today as there was a year ago, because most of the coils have been removed." Witnesses testified there was an odor about the fountain caused by leakage and the lack of refrigeration, and that its condition was unsanitary; that cold carbonated water could not be drawn from it and that its refrigeration was a failure.

It was conceded that the fountain was not in existence at the time appellee signed the contract sued on. It is admitted, however, that he did see a full-sized model of it before that time, and that he also saw similar fountains at the factory before his purchase, and appellee admitted that he saw certain fountains in operation in Kansas City, where the factory was located, but he says at that time he had already signed the contract. It is also admitted that after the fountain had been in use for a period of five months, appellee made a payment of $ 500 on account of the purchase money, but it was explained that this payment was made after assurance on appellant's part that defects complained of would be remedied, and appellant requested that a fair opportunity be afforded for the fountain to prove its value.

A certain witness who claimed to be an expert testified that he had examined the fountain and had discovered certain structural defects which required remedying before the fountain could be regarded as adapted to the use for which it was intended, and he testified that the cost of this change in the system would be $ 1,900.00. Appellee was permitted, over appellant's objection, to state that he had expended $ 200 in repairs of various kinds on the fountain in the attempt to make it usable.

Exceptions were saved by appellant to the action of the court in refusing to give various instructions asked by it, the...