40 So. 951 | Ala. | 1906
This is a suit by the ^plaintiff, the Berlin Machine Works, against the Marbury Lumber Company on a written contract for the price of certain
With reference to the machinery sold and delivered by plaintiff to the defendant, the contract contained the following clause, viz.: “In case of rejection, consignee will promptly deliver it to the consignor F. O. B. at Beloit, Wisconsin”'— and, further: “A retention of the property forwarded after thirty days from date of arrival shall constitute a trial and acceptance, be a conclusive proof of the truth of all representations made by or for the consignor and void all its contracts of warranty express or implied.” The guarantee following the specifications, and which is attached to the contract, concludes as follows: “And we further allow ten days from arrival on cabs at Marbury, Alabama, of this machine as a trial period to demonstrate the above facts exist in this machine and that the specifications have been fulfilled in every sense.” These provisions in the contract- and guaranty must be taken together with the contract and guaranty and so construed as to give force and meaning and operation according to the intention of the parties to the contract. To do this, as we understand and construe the provisions of the contract and guaranty, tire guaranty applies only for the trial of-the machine, and,"upon a failure of the machine on such trial, author
The complaint averred a retention of the machine by the defendant, and this averment was not denied by the pleas. The simple averment in the pleas of the warranties contained in the guaranty attached to the contract and the averment of the rejection of the machine by the defendant, without more, was not a sufficient answer to the cause of action made by the complaint, and the demurrers to the pleas should have been sustained. . The judgment appealed from must therefore be reversed, and the cause remanded.
Reversed and remanded.