40 S.E. 941 | S.C. | 1902
February 18, 1902. The opinion of the Court was delivered by On the 23d of May, 1899, the Daniel Pratt Gin Co., of Prattsville, Ala., entered into a contract with the appellants, by which they were to deliver a gin system, consisting of gins, separators, distributors, suction pipes, fans, pipes for removal of seed, a press and many other parts therein set forth, among which was a line shaft *442 with a system of pulleys thereon — one of which in size had to be arranged with reference to the driving pulley on the engine, so that the driving pulley on the engine would operate on the driving pulley on the line shaft, and thereby give the other pulleys on the line shaft of the gin system the required speed, to wit: 250 revolutions per minute. The defendants were to furnish their own engine with their own driving pulley thereon, and to give the gin company the size of said pulley and the number of revolutions the engine caused it to make per minute, or, in other words, the speed of the engine with reference to the driving pulley on the engine so as to run the line shaft 250 revolutions per minute. Those provisions of the contract that are material to the questions under consideration are as follows:
"Questions we must know. — Whether there is an engine already up; if so, give the diameter and face of driving pulley, speed of same also the position of said driving pulley as it sets in relation to the building; if not set up, whether there is any particular place same must be set. No particular place. Whether we furnish main driving pulley on line shaft. Yes * * * Date when shipped, August 3, 1899. I, or we, the purchasers, agree to furnish motive power to drive said machinery and to arrange to run the line shaft 250 revolutions per minute. Note — The pulleys listed in catalogue are based on line shaft running 250 revolutions; hence, if there is any change in this speed, the pulleys whichgo on line shaft will have to be changed accordingly * * * (italics ours).
"Services of Man. — It is hereby expressly understood that if the Daniel Pratt Co. are to furnish a competent man to superintend erection of above machinery, we agree to pay to and board their man while at work on the job, and also to place of erection of above machinery. We also agree to furnish all material for the erection of said machinery not stipulated in this contract, and to furnish said superintendent with all help necessary to erect the above mentioned machinery with dispatch. Which machinery we agree to *443 receive on arrival * * * The said Daniel Pratt Gin Co. is not to be held responsible for any delays in shipping from any cause except its own employees' negligence, and in no case shall damage for delay in shipping amount to more than the rental value of the property for the time of such delay * * * It is distinctly understood between us, that noagreement, verbal or otherwise, will be recognized unless specified in this contract, which includes warranty on back hereof. * * *
"Warranty. — The machinery is fully warranted to be of good material and well made, and with proper management to perform what is claimed for it in our printed circulars. But if, upon a full and fair trial, it should not satisfactorily do its work, then immediate notice must be given Daniel Pratt Gin Co., Prattsville, Alabama, and to the agent from whom it was purchased, and reasonable time allowed to send a competent man to remedy the defect; and in case the trouble be caused from a clearly defined original defect in the machine itself, then the Daniel Pratt Gin Co. will furnish the defective parts without charge; defect in any part not to condemn other parts. And if, on trial, the machine cannot be made to perform the work of a capacity for which it is sold, as per this order, then the Daniel Pratt Gin Co. agrees to take said defective machinery back, and refund so much of the cash payment and notes as applies to defective machinery. The purchaser agrees to properly put up and operate the machinery according to printed directions furnished by the manufacturers, and that if the fault be traceable to not putting up and operating according to printed directions, purchaser agrees to pay all expenses incurred in rectifying it. Thirty days' use of same will be conclusive evidence of fulfillment of warranty and acceptance. Any failure on the part of the purchaser to comply with his contract, releases this warranty entirely."
The other necessary facts are set forth in the decree of his Honor, the Circuit Judge, which will be reported. The defendants appealed from said decree on numerous exceptions. *444 We will first consider the fifth exception, which is as follows: "5th. That his Honor erred in his findings of facts in said decree in the following particulars, to wit: That the cause of the trouble with the machinery was the want of a proper size pulley on the main line shaft, and that the defendants were responsible for not having a proper size pulley thereon. He should have found that the Daniel Pratt Gin Co. were responsible, if the trouble arose therefrom, that their own experts were sent, at defendant's cost, to see that the machinery was arranged properly; and if such a pulley was needed, their own experts should have secured it and have placed it in position, and have demonstrated the machinery to be right before they turned it over to defendants; and that having failed to do so, they could not take advantage of their own wrong and failures to do the right and proper thing." His Honor, the Circuit Judge, says: "The principal cause of the defective working of the gins, it seems, was the defendant's action in attempting to run the machinery with a steam shaft making only 180 revolutions per minute, when the gins ordered were for steam shaft arranged to run the line shaft 250 revolutions per minute * * * Of course, the machinery worked badly — indeed, it would have been almost a miracle if it had worked smoothly under the conditions." At the time of the contract, the defendants did not have an engine, but contemplated purchasing an engine which they afterwards used, and this fact was made known to the agent of the gin company. After considerable correspondence between the parties to the contract, the gin company, on the 15th August, 1899, wrote the following letter:
"Messrs. J.E. R.H. Timmerman, Timmerman, S.C. ___ Gentlemen: We are in receipt of yours of the 10th, in which you say the speed of your engine is 180 revolutions, besides the pulley on the line shaft is 2 1-2 ft., and the size pulley you want to go on the line shaft is to be 25 in. Taking your engine running at 180 revolutions with a 30 in. pulley on it, we have figured that it will be necessary for you to *445 have a pulley 21 in, in diameter to give our line shaft the proper speed, and have ordered this pulley shipped to you direct at Seigler Sta., S.C. so as to avoid delay, which we trust will be satisfactory. Yours truly, (Signed) Daniel Pratt Gin Co."
This pulley was received about the last of September, 1899. Previously and after that time the agent or superintendent of the gin company endeavored to put the machinery in good running order. Before receiving the pulley shipped by the gin company, the defendants used a pulley which they had borrowed from another party, but which likewise failed to give satisfaction. The following provision, to wit: "Note — The pulleys listed in catalogue are based on line shaft running 250 revolutions; hence, if there is any change in this speed, the pulleys which go on line shaft will have to be changed accordingly," is of vital importance in the construction of the contract. There was a change in the speed of the engine, of which the gin company was notified before it shipped the pulley, and its letter shows that the pulley was sold to be used on a line shaft making only 180 revolutions per minute. It was, therefore, the duty of the gin company, under its contract, to make the machinery "perform the work of a capacity for which it was sold," to wit: to do its work properly when run by a line shaft making 180 revolutions per minute. These views show that his Honor's construction of the contract was erroneous.
As this Court has determined to remand the case for a new trial, it deems it advisable not to consider the other exceptions, as they principally involve questions of fact, in order that the Circuit Court in trying the case, de novo, may not be trammeled by any conclusions of this Court except as to the construction of the contract — all other questions being left open.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial. *446
