52 La. Ann. 1957 | La. | 1900
Lead Opinion
The opinion of the court was delivered by
Plaintiffs, in each case the transferee of the- vendor to the defendant of sugar house machinery, brought this suit to recover a part of. the purchase price. This vendor made an assignment of part of his claim to Fee, and of the other part to Morris. Each of the transferees brought suit in his own name. Fee’s case was allotted to .Division A of the Civil District Court, and Morris’ case was allotted to Division E, of the same court.
Defendant filed an answer in each case. Some time after these answers had been filed, the defendant filed a supplemental answer in each case alleging that whatever amount, if any, was due by the respondent to his vendor, such indebtedness is indivisible; that defendant cannot be compelled to accept any new creditor in lieu of his vendor, by virtue of any partial assignment and with such new creditors singly litigate his rights and the defences he may have against his vendor (W. R. Taylor). A motion was made on the part of one of the plaintiffs to transfer the Morris case to Division A of? the District Court, as the case involved the same issues as those involved in the Fee case, and shortly after the case had been transferred, the two cases were consolidated upon the condition that the vendor of the machinery and the transferror to Fee and Morris, plaintiffs, was to be made a party to the suit. Defendant’s counsel oxaposed the motion to consolidate chiefly because, at that time, the Morris vs. Sentell case was a jury case, and the Fee vs. Sentell one, was not. Fee, then, presented an application for a jury, and the same was granted. The transferror, Taylor, was made a party and the minutes of the court show that there was consent on the part of the defendant. All the parties are before the court.
The objection to the indivisibility of the obligation at this stage of the proceedings raises only an abstract question. Defendant made this
Opinion on the Merits
Statement op Facts Appertaining to the Merits.
The contract between plaintiffs’ transferror and the defendant, dated March li-th, 1898, was one of sale in which the former plaintiffs’ transferror (Taylor), sold sugar house machinery to the latter (Sentell) consisting of a vacuum pan and adjuncts or attachments made up of the pan, eondensors, coils, centrifugals, engines, and other parts for which defendant bound himself to pay the sum of six thousand one hundred and fifty dollars. He, plaintiffs’ transferror, in the same deed, sold other machinery to the defendant, consisting of one Newell Natipnal Cane Shredder, and parts and pieces connected therewith, for which defendant bound himself to pay to the transferror (Taylor) the sum of twenty-five hundred dollars. The defendant obligated himself to pay one-half of the whole price cash on delivery, which was in the Spring of 1898, and the remainder on December 15th, 1898. He, the vendor, retained a vendor’s lien to secure the credit portion. Defendant’s complaint is that the machinery is not what vendor represented and guaran? teed, but that, on the contrary, much of it was in an imperfect condition, some of it broken, out of proportion, worn out and unfit for use, the use of which by him resulted in loss, rendering necessary the replacing of pieces, repairs, and the buying of certain parts, employment of labor, and other expenses not contemplated when he bought the machinery. He alleges that the amount so paid out exceeded seventeen hundred dollars, of which four hundred dollars was for a certain new en? gine which the vendor was unable to deliver without this advance on the price, and further, on account of this defective machinery, that he has had to expend other large sums of money in the saving of his sugar crop, exceeding five thousand dollars; that a large part of the machinery will have to be replaced; and, in consequence, the vendor or his transferees have no claims on the deferred payments. Plaintiffs’ transferror, Taylor, and the defendant both testified. A number of other witnesses were heard. We take up for review, in the first place, the testimony of the latter.
Another witness, a son of the witness whose testimony we have just summarized, testified that the condition of the centrifugals was first class when they were shipped from Pennsylvania to Louisiana, in 1896, taking into account that they were second hand machines; that all parts which showed use had been overhauled, and, if found defective, the defects were remedied; that the baskets of these centrifugals were taken apart and new sheets substituted for the old ones; that the machines were carefully inspected before shipment; and that the balance of the machinery, consisting of a vacuum pan and accessories, were built from new material and were carefully built and erected in the works before shipment. ,
This machinery was shipped to the Rose Hill plantation in Louisiana, to which it was sold, but where it remained idle two years, when it was sold to Taylor, and he sold it to the defendant. In his testimony, this vendor corroborated the foregoing testimony, and stated that the contract before referred to, in which he *was the vendor, was complied with by him in every way.
We may as well state here that the centrifugals had been in use since 1813; that they were overhauled and repaired in 1890; that they were crated and sent to Abbeville, where they remained two years, when they were sold by W. R. Taylor to defendant, who shipped them to his plantation, where they were unpacked and'erected in his sugar house. An expert was sent by one of the attorneys for one of the plaintiffs, to de
The mechanical engineer who erected the machines for the defendant is spoken of by the other witnesses as being quite competent. This engineer testified that parts of the machinery were broken; that some parts were new and some were old and some were badly proportioned; that there were so many defects about it that he advised the defendant not -to have anything to do with it, even after-it had been delivered, and was •on defendant’s plantation; that it was difficult to do anything satisfac
We are informed by this witness that in due time Mr. Taylor supplied the missing pieces of the machinery, by others, to which pieces this witness refers as satisfactory. He also says that some attempt was made by him to remedy the objection to the mixer, which was not quite large enough, and this also worked satisfactorily enough. This witness testified that in erecting the machinery, he had with him on the work some-men who were first-class, and in addition, some cheaper labor, as is usually the case in erecting- sugar house machinery; among them he had a skilled mechanic and blacksmith, and that after everything had been adjusted properly, the operation of making sugar was commenced. After two days, the centrifugals wabbled so as to render it difficult to-work them at all. “They were so worn and gone, you couldn’t work them at all”, the witness testified. Centrifugals are, or should be, balanced at the shop from which they are shipped. These were not balanced when received and an unbalanced centrifugal will break off, if
Another witness, who had the experience of many years, went, during-grinding, to defendant’s place, at his request, to see the condition of the-machinery, and more particularly, the centrifugals and mixer. He says .that the machines were second-hand, and made up of different partsTher'e were only two of the centrifugals in question on the place when he made his visit; the other two had been broken and shipped away sometime previously. He found the mixer in a bad condition and everything was badly worn. With reference to the machinery, he said: “I should say that it had been erected in a very substantial manner.” This witness says that if one of these machines ran, say ten days, with proper handling, it would run the whole season. lie also said that the mascuite was. unusually tough and heavy in 1898 and that it gave some trouble.
We insert here a letter from W. R. Tyalor to G. W. Sentell, a copy of’ which will be found in the record:
“New Orleans, December 11th, 1898.
“Mr. G. W. Sentell, Bunkie, La.
“Dear Sir — I have hunted the town over and find only one new Weston (Morris make) machine at Haubtman & Loeb, for which they ask $450.
“None of the other shops have any, but Murphy has two Hepworths-. en route from New York, ordered about ten days ago.
“I find a set of three Hepworths which Haubtman says he overhauled in the shop and guarantees to be in good working condition, and are-ready for immediate delivery; price $1250.
“I also find four Westons of American Tool and Machine Co. make,. at one of the refineries, which need some repairs, and which, by working-night and day, could be shipped in a couple of days; price $1200.
“All of these machines I would have to pay cash for when shipped. I can get you four Hepworths from N. Y. in about one week in good condition for $800 each, if you can use your present driving gear for this season, which I think can be done, but wired you again to-night ashmg; you to mail plan of Morris machines by special delivery so I can see-how it can be worked in. You would have to pay for these machines and deduct from Morris’ accounk,. and another season I will furnish a-new mixer. (Italics ours.)
(Signed) “W. R. Taylor”'
The judgment appealed from condemns the defendant to pay C. B. Fee, one of the plaintiffs, the sum of eleven hundred and three 44-100 dollars, with interest, and condemns him to pay to the other plaintiff, Morris, twenty-five hundred dollars, with interest, each with vendor’s lien.
We are only announcing a principle which no one denies when we state that the vendor, unless warranty is waived, warrants the thing sold .as fit for the particular purpose for which it was bought. The contract sets forth that the centrifugals were “in a perfect condition.”
We will not fall into the error of supposing that a second-hand machine can do the work of a new one, but it must be fit to do the work the contract shows was intended. After its acceptance by the vendee, who knows its condition, as complete and satisfactory, he is no longer in a position to urge objection. We think that as relates to the bulk or principal part of the machinery, defendant must be held to have accepted the machinery and to owe the price. He made more than one million and a quarter pounds of sugar with it, valued at about fifty-five thousand dollars gross, and is therefore without ground to complain of that part which held out during the grinding season. It is incumbent on the buyer to discover all such defects, as are discoverable on simple inspection of the thing he buys. The jury and the judge of the lower court decided that all the defects were discemable on simple inspection and that the buyer was warned and his attention called to the defective condition of the machinery by a mechanical engineer in his employ. ’Vendor and vendee, none the less, determined to erect the machinery. The buyer, in our judgment, is without the right to a diminution of the price for any defect discoverable on simple inspection. The purchase price retained by the vendee could only cover defects in. machinery not’ discoverable on inspection. This conclusion, we think, covers all the machinery (from the price of which to some extent, the verdict of the jury and the judgment of the court have already made some deduction) except three , of the centrifugals. The other machinery, the pan etc., to which we have referred, did all the work required of it during the taking off the crop. This can not be said of the centrifugals. The work of making sugar had progressed very little when one
It is, therefore, adjudged, ordered and decreed that the verdict of the jury and the judgment of the court are affirmed as relates to all the machinery sold by Taylor to the defendant, except as to three of the centrifugals, to which we have before referred. As to them, the law and the evidence being against plaintiffs, the verdict of the jury and the judgment of the court are annulled, avoided and reversed, and the case remanded to the lower court to ascertain the value of the centrifugals.
The appellees to pay costs of appeal.
Mr. Justice Blanchard took no part in this decision, not having Heard the argument at the bar.
One of the appellees, C. B. Fee, asks that the decree be so amended as to determine who is to bear costs, and to that end avers that he claimed :no rights upon or against the centrifugals which were part of the ma- • chinery sold by II. G. Morris to defendant, which part of the machinery •the court found was defective. He further avers, that the decree recites .•appellee is to pay costs, and that petitioner’s judgment having been af•firmed and not disturbed in any particular, he should not bear any of the •costs.
We understand that the District Court consolidated the causes, for "the reason that plaintiffs were respectively the assignees of Taylor, who ■was originally the creditor of the defendant.
Counsel for Fee contended in the lower court that these are two sep••arate cases, and that the court would have to pronounce two separate judgments, and that in case of Fee, the amount being less than two thou.sand dollars, the appeal would lie to the Circuit Court of Appeals, and the ease of Morris would be appealable to this court. The court held, in passing upon the question, that plaintiffs represented the Taylor claim, .and that the case was not as contended by counsel, that one verdict would determine the rights of each, and that one judgment would be written. Under that ruling, both cases came to this court on appeal, •consolidated, and both'claims were merged into one judgment. Each of the plaintiffs was a party. As relates to the costs as to who should pay "them, the judgment is indivisible.
The law directs that in case of the least change in the judgment on :appeal, the appellees shall pay costs. The judgment was amended as to Fee, although his claim remained as it was before the appeal. Having chosen to take his chances on appeal with the other plaintiff, we think that he is responsible for his proportion of the costs on appeal. The
It is therefore ordered, adjudged and decreed that our decree heretofore handed down in this case, be so modified that each of the appellees shall pay costs in proportion to the amount of his claim. As thus modified, our judgment remains and a rehearing is refused.