119 Ark. 1 | Ark. | 1915
This is an action instituted by appellant against appellee to recover the price of a lighting plant wMteh was installed in appellee’s country residence in Benton County, Arkansas. The ¡transaction occurred in the year 1908. A.- S. Phelps, Jr., doing business -at Elkhart, Indiana, under the ñamé of New England Mannfacturi-ng 'Company, was engaged in manufacturing, selling land installing gas lighting plants for private use, called the “Phelps’ Carbide Feed Gras Generator,” and through his agent, one E. P. "Roberts, sold an outfit to appellee and installed it in ihis residence. Appellee signed a written -order to Phelps for the outfit, which order -contained specifications and stipulated the price of $2-25.00 to be evidenced by two notes payable in eighteen months. Phelps installed the -plant, -and when the installation was complete Roberts -executed to ap-pellee, in the name of his principal, a written guaranty in the following form:
“We hereby guarantee for one year the Phelps Carbide Feed Acetylene Gas Generator as follows:
“Made in workmanlike manner and of substantial material in accordance with the National Board of Underwriters ’ requirements.
“Will diffuse light equal to sample -exhibited.
“The laboratory test yield per pound of carbide is five cubic feet of gas.
“The lighting capacity depends upon the size -and number of 'burners used.
“Cost of -carbide is $3.75 per cwt. or $70.00 a ton, at the Union Carbide Co. ’s warehouse in every state.
“If -same don’t do as this guarantee calls for, we agree to take oult plant without cost to Mr. Coffelt.
“Chicago, Illinois, “New England Mfg. Co.
“March 6,1908. “By E. P. Roberts.”
'The whole of the above writing was according to a printed form -furnished to Roberts by his principal, except the last clause, which was inserted by Roberts in his own handwriting and, according to the -evidence in the -case, without any specific authority from his principal to do so. Negotiable promissory notes were executed by -appellee to Phelp-s on the same date that the above guaranty in writing was given, land Phelps transferred the notes before maturity to appellant, and the 1 alter instituted suit thereon; but it was adjudged in tihiat ease that the article ©old was “.a patent machine, implement, subs tantee or instrument,” and that as appel-lee’s notes were not executed upon a printed form showing the true consideration in aceordiaince with the terms of the statute, the same were void. Ensign v. Coffelt, 102 Ark. 568. Phelps thereupon assigned to appellant the original cause o>f action, which constituted the .consideration for the notes, and he instituted the present action thereon. Appellee alleged in his answer that Phelps’ agent, in making the sale of the lighting plant to him, agreed that the same should ¡be taken on trial ¡by appellee for a period of eighteen months, and that if it did not diffuse light up to the standard of the sample which wTas exhibited, or should in 'any other way fail to -give satisfaction, the seller would take out the plant and release appellee from all obligation to pay the price. The answer further alleges that the outfit failed to furnish light in accordance with the guaranty, and that appellee gave notice thereof to Phelps and tendered the plant back to him. The trial of the case before .a jury resulted in a verdict in appellee’s favor, from which an appeal has been prosecuted.
For the errors indicated, the judgment is reversed and the cause remanded for a new trial.