Young v. Arntze

• Decision Date: 08 January 1889
• Citation: 5 So. 253,86 Ala. 116
• Parties: YOUNG ET AL. v. ARNTZE ET AL.
• Court: Alabama Supreme Court

5 So. 253

86 Ala. 116

YOUNG ET AL. v. ARNTZE ET AL.

Supreme Court of Alabama

January 8, 1889

Appeal from circuit court, Morgan county; H. C. SPEAKE, Judge.

Action by George Arntze & Bros., against William J. Young and others, for the breach of contract. The original complaint joined a count founded on the breach of the contract with other counts founded on contract for goods sold and delivered, for account stated, and on open account. The defendant demurred for misjoinder of counts and causes of action. The court sustained the demurrer, whereupon plaintiffs amended by striking out the counts on contract and adding a second count for breach of a contract.

The defendants moved to strike out the amended complaint, because the same was a departure from the original action, as contained in the several counts stricken out. The court overruled this motion, whereupon defendants excepted, and then pleaded the general issue; want of consideration failure of consideration; fraud; breach of warranty recoupment; and rescission of contract. Issue was joined on these pleas.

The contract, as stated in the amended complaint, was that plaintiffs sold defendants certain saw-mill machinery "in the condition in which they then were, and which were then at the plaintiffs' mill in Decatur, Ala., and plaintiffs, by said agreement, were to deliver the said mill machinery and other things on cars at Decatur, Ala., as soon as defendants could make arrangements therefor, and as soon as the roads would permit the removal of the same to the cars; and in consideration of the said bargain and sale, and of the delivery as aforesaid of said mill machinery and other things in and by said agreement, the defendants promised and agreed to deliver to plaintiffs one hundred and forty thousand feet of good merchantable lumber. *** And by said agreement the said defendants promised and agreed to deliver said lumber on the side track of the South & North Alabama Railroad, at Flint Bridge, in said county of Morgan," at certain times, and in certain quantities. The complaint then alleges performance on the part of plaintiffs, and non-performance on the part of defendants. Plaintiffs introduced the written contract, which was under seal; proved that they had performed their part of the contract, and that the defendants had performed none of the contract, so far as related to them, and then rested.

The defendants introduced evidence tending to prove that, in negotiating for the purchase of the machinery with the plaintiffs, the plaintiffs had represented the machinery to be in good condition, and suitable for the purpose for which it was bought, which was for the purpose of running a saw-mill; that they had bought it under these representations; that after trying to use it, it was discovered that some parts were missing; that it was not in good condition, and would not do the work for which it was bought; and that they notified plaintiffs that the machinery had been misrepresented to them; "that they never expected to fire them again, and that plaintiffs could take them back;" and that the defendants then abandoned the use of the machinery, and did not use the same again, except by an arrangement made with one Patterson, who was negotiating with the plaintiffs for its purchase, and who had given the defendants permission to use it, telling them that he was going to buy it from the plaintiffs. The defendants then offered evidence to prove that the plaintiffs offered to sell the machinery to one Patterson and other parties, and that they had agreed upon the terms of purchase.

The defendants also introduced evidence to prove that the defects in the boilers were not open to ordinary observation. Defendants did not return or offer to return the machinery to Decatur.

The plaintiffs' evidence in rebuttal was in direct conflict with the testimony in behalf of defendants. On the examination of one of the defendants as witness in his own behalf, plaintiffs asked, "Were you not informed that the side track at Flint Bridge, Ala., would not be built by the railroad, before you offered to rescind?" Question objected to. Objection overruled, and defendants excepted. The plaintiff also asked "if a side track had been put down at Flint Bridge?" Objected to. Objection overruled and defendants excepted.

On the examination of one Ryan, an expert witness for the plaintiffs, to show that the cause of the seeming defect in the boilers was because of the improper construction of the furnace, the witness was permitted to state that he told defendants that the furnace was not properly constructed, and that they could not run the machinery in that manner, which testimony was allowed to go before the jury, against the defendants' objection; to which ruling defendants excepted. The court charged the jury, among other things that "the defendants in this case could not utterly defeat this action on the ground of fraud, unless they returned, or offered to return, the machinery to the plaintiffs at Decatur, Ala.; that an actual delivery or offer to return the machinery to the place from which the defendants obtained the same was necessary to a rescission on the ground of fraud." To this charge defendants excepted.

The plaintiffs asked the court to charge: "(1) If the jury believe from the evidence that the defendants entered into the contract for the purchase of the mill property on their own judgment, then there is no implied warranty on the part of the plaintiffs. (2) If the jury believe from the evidence that the defendants purchased and received the articles described in the complaint from the plaintiffs, they cannot avoid the payment of the entire purchase money on account of fraud or breach of warranty, if you further believe defendants retained the same, and have never rescinded or offered to rescind the contract, unless you further believe that the articles are altogether worthless. (3) If the jury believe from the evidence that the defendants never offered to put the plaintiffs in the same condition they were before the contract of sale, then there is no rescission of the contract."

The court gave the charges requested, to which defendants excepted.

The defendants asked the court to charge: "(1) If the jury believe from the evidence that,...