130 Ky. 222 | Ky. Ct. App. | 1908
Affirming.
In June, 1905, the appellant city of Bardwell purchased from appellee an engine to be used in operating* its electric light plant. It contracted to pay for the engine $1,550. Six hundred dollars of this amount was paid in cash, $450 in an old engine, and for the remaining $500 the city executed its note due in June, 1906. The note, as well as the contract, contained the stipulation that the city had received the engine from the Southern Engine & Boiler Works “with the express agreement and understanding that the title of said machinery is now and shall remain in the said Southern Engine & Boiler Works until the note is paid in full; and it shall have the right in case of nonpayment at maturity of said note, or at any time it deems itself insecure, or if the property is sold or removed from the district where located, to enter and' retake immediate possession of said property wherever it may be and remove the same.” The contract also contained the following guaranty: “The material and workmanship entering into the construction of this'engine shall be first class in every respect, and any defective part will be replaced by us without charge. We also guarantee this engine to run smoothly with close regulation under varying loads and steam pressure and to be as economical in the use of steam as any engine of its class.” Failing to pay the note at maturity, the appellee instituted this" action against the city. It asked for judgment for its debt, interest, and costs, and that it be adjudged a lien on the engine to secure the payment of the same. To this petition the city answered that the engine was not
In respect to the question that the city had no
Upon the issue presented as to whether or not the engine fulfilled the guaranty^ the evidence is conflicting. Indeed, the weight of it tends to support the conclusion that the engine in some particulars, especially in material, was not what if was guaranteed to be. The engine was installed as a part of the electric plant in July, 1905, and the evidence shows that it operated the plant continuously from the time it was installed until the last depositions in the case were taken in the summer of 1907. Presumably the city, as it superseded the judgment, is yet using the engine for the purpose for which it was bought. Soon after the ■ engine was installed, the city notified the engine company that the engine was not rendering satisfactory service, and pointed out several defects in its material and construction. In response to this letter, the .company sent one of its agents to inspect the engine. After making an inspection, he reported to the company that the engine fully came up to the stipulations contained in the contract, and that he found no defects either in material or construction, although a number of witnesses who testified for the city, some of them being experienced machinists, were able to discover defects in both these particulars. It may, however, be here remarked that the defects in material or construction, although causing some inconvenience and annoyance, as well as additional expense, did not seriously interfere with the running of the engine, or
The expert selected by the city reported to it as follows: “As requested by Mr. Ponder, a member of your board, I made an examination of the Coyliss engine at electric light plant' at Bardwell, Ky. I found it running smoothly, and a steady light from lamp spoke well for speed regulation. The cylinder head
Immediately upon receiving the report from its expert, the company wrote the city the following letter :£ £ The machinist sent by Southern Engine & Boiler Works to examine the engine sold you some time ago has returned, and made his report to the company-He reports that he found the engine in comparative!' good condition, and for all practical purposes no defects in same that would in any way impair its usefulness. He reports that there is a defective casting in the cylinder head which will permit oil to ooze through; that he found that the grab claws had been taken off, and some set screws put in their place; and also the end of the crank where grab.claws had been broken. I now write to say that a new cylinder head will be replaced and a new pair of grab claws put on, as well as a new crank end for the grab claws. We will also turn off face of piston rod nut and stuffing box gland to give more clearance for the piston rod. These matters are to be done without any additional cost to you and done whenever it may suit your convenience, and, when demanded by you, it will be whenever you will give permission to do so. We are ready and willing to do this.” It seemed that the city did not answer this letter, nor did it notify or inform the company of the report made by its expert, nor have sent to it a copy of his report, and a few weeks after-wards the company again wrote, expressing its willingness to supply all the defects of which it had notice, and also said: “If there are any defects connected with this machinery under the contract, the Southern Engine & Boiler Works has the right to make it good, but, of course, they are entitled to be notified what they are. And, as stated above, I understand you had
Assuming.that there were defects in the material, used in the construction of the engine, and the evidence shows that there were, it became the duty of the company under its contract to cure these defects by supplying other pieces of machinery to take the place of the inferior ones. That it was somewhat negligent in this respect may be conceded, but it is also true that the defects were not of such a character as to prevent the operation of the engine, and it may safely be said that those reported by the expert selected by it are the only ones that are definitely and certainly pointed out as being necessary to remove in order to bring the engine up to the guaranty. When the city received the report of its expert, it should have sent to the engine company a copy, and demanded of it that his recommendations be complied with. The cortespondenee shows that the city did not do this, and, further, that the company was ready and willing to perform its contract and1 supply any deficiencies in
The judgment of the lower court is affirmed.