McClave-Brooks Co. v. Belzoni Oil Works

| Miss. | Mar 15, 1917

Ethridge, J.,

delivered the opinion of the court.

The appellant filed suit in the circuit court of Washington county for six hundred and thirty dollars, the purchase price of an outfit sold defendant to be used under their boiler, and ¿Iso for twenty dollars and fifteen cents, supplemental articles in connection therewith. There were three counts in the declaration; the contract being made' an exhibit to the declaration. The first count alleges the sale of the goods, wares, and merchandise of the said amount, alleges performance on the part of plaintiff of the terms of the contract, and demanded judgment for the said amount. The second count of the declaration declares in debt for sis hundred fifty dollar.s and fifteen cents on itemized account. The third count declares on contract and alleges that it was agreed by the plaintiff that the equipment sold was guaranteed to save ten per cent, of defendant’s coal hills and that the boilers in defendant’s mill would be increased twenty-five per cent, in capacity, and that, if after sixty days’ trial the said guaranty were not made good, the plaintiff would remove the system or equipment at the convenience of the defendant and at the expense of the plaintiff, and would leave defendant’s furnace in as good condition as originally found, but that, if the guaranties were made good, then the defendant was to pay plaintiff one-half the purchase money in cash and the balance at the end of sixty days after the completion of the trial period, and alleges that before the end of the trial period, because" of the negligence on the part of the employees of the defendant in charge of said equipment, the principal part of the equipment was burnt out and destroyed and had to be taken out by the defendant, thrown away, and rendered absolutely valueless, and demanded judgment for the full contract price of the equipment. The contract made an exhibit to the bill, omitting the itemized articles embraced in it, reads as follows:

“ ■ . . . All the foregoing are to be erected by us complete before August 20, 1914.

‘ ‘ Trial period to start October 1, 1914.

“Guaranty: To make a saving of ten per cent, in your coal bills, and increase capacity of boilers twenty-five per cent., the saving in fuel to be evidenced by' your coal bills during the trial periods, and further guarantee you will be able to clean fires through the action of the grates with fire doors closed, and your boiler pressure will be more uniform, and you will be able to burn any marketable coal; in burning slack coal, it will not take more than ten per cent, of slack to do the same work as mine ran coal, both coals being from the same mine.

“Price of the equipment as above specified, sis-hundred and thirty dollars ($630).

“F. o. b. cars Scranton, Pa.; Freight money will be refunded if we do not make good the above guaranties.

“Terms: Trial period of sixty days, if we do not make good the above guaranties we will remove our system at your convenience, and at no cost to you, and leave your furnace in as good condition as originally found, after which our contract becomes void; if we make good the above guaranties you are to pay us half the amount at the end of trial period, and give us sixty days’ note for balance.

“This proposal is for prompt acceptance and is intended to cover all material which is a part of the system complete as specified above, but does not include any brickwork or steam fitting.”

—which contract was accepted by the Belzoni Oil Works.

Defendants pleaded the general issue and gave notice that under its plea of the general issue (under our statutes) it would claim an offset against the plaintiff for loss of time, increased coal consumption, etc.

Plaintiff introduced evidence that the machinery so ordered was shipped and installed and that it showed the defendant the manner of using the equipment; that after it was installed, and prior to the end of the trial period, it had inspected the work of the defendant, on the complaint of defendant, and found that the defendant had not operated the equipment properly, but had permitted ashes to accumulate in the ash pit, had overheated the equipment, and had installed extra pipes in the-drafting of the equipment which impaired the efficiency of the equipment. Plaintiff also proved that it found certain of the grates damaged and burned out, and had told the defendant to order and put in new grating which it failed to do. It also offered in evidence state-. ments of the agent of tlie defendant (defendant being a corporation) to a third party recommending the equipment to the third party as increasing its boiler capacity. Plaintiff offered to prove that plants constructed just as the one in suit was would increase the boiler capacity twenty-five per cent, and decrease coal consumption ten per cent. This testimony was objected to, objection sustained by the court, and an exception taken. The testimony offered by the plaintiff to show that the agent of defendant recommended the equipment to a third party, a sawmill man, representing that it had increased the boiler capacity of defendant’s plant, was excluded by the court and an exception taken. The plaintiff’s witness testified that absolute carelessness on the part of defendant caused the equipment to be burned out.

At the conclusion of the plaintiff’s testimony, defendant moved to strike from the files the third count of the declaration, which motion the court sustained.

The defendant offered evidence that the equipment did not perform the work as guaranteed, and that, instead of increasing its boiler capacity, there was a decrease, and that, instead, of a decrease in coal consumed, there was an increase in coal consumed. It also offered testimony that it kept the ash pits cleaned out and otherwise conformed to the proper operation of the equipment. In this condition of the record the court granted a peremptory instruction for the defendant.

Plaintiff in its appeal here assigns as error that the court erred in striking out the third count of the declaration; that the court erred in sustaining objections to the testimony above mentioned; and that the court erred in granting a peremptory instruction for the defendant.

■ We think the court erred in each of these particulars. In striking out the third count of the declaration, we presume it did so on the theory that it was a declaration in tort, but we do not think it is. We think it was permissible for the plaintiff to allege in its declaration that the wrong of defendant prevented it from making good its guarantee by demonstration; that it would have performed its contract and made good its guarantee hut for the failure and refusal of the defendant to make the test for the period of time named in the contract, under the direction and instruction of the plaintiff.

The motion to strike from the files was an improper way to raise the objection to the pleadings, but, if the defects appeared upon the face, a demurrer should have been taken and the plaintiff given an opportunity to amend, if advised that such course was proper.

We believe it was erroneous to refuse to admit the declaration of defendant’s manager that the equipment was giving satisfaction and was increasing the boiler capacity of their plant, made to a third party. Defendant, being a corporation, must act through its agents, and the declaration of its manager, under the circumstances disclosed in this record, is a declaration of the corporation itself, in legal effect.

In reference to the peremptory instruction given for the defendant, we think we have stated enough to show there was evidence which, if believed by the jury, would warrant a verdict for the plaintiff, even though the third count of the declaration was stricken out. It is our belief that the declaration, alleging performance of all the conditions on the part of plaintiff, was sufficient to show that its contract was regularly performed, when it performed to the extent that defendant would permit it to perform, and that the defendant could not use its own wrong in preventing a performance — which the plaintiff’s evidence tends to show that it did — to its own advantage; and if the evidence showed that the defendant’s wrong prevented a performance, it could not, under the pleadings in this case, make the objection that the plaintiff was confined to the affirmative averments in its declaration. Under our statutes (Code 1906, section 769) it is sufficient to aver generally that the plaintiff performed tlie conditions on its part, and it devolved upon the defendant, by its pleadings, to assign in wbat particulars there was a failure on the part of the plaintiff to perform, to which pleas of the defendant plaintiff would have a right to reply by confession and avoidance or by tendering issue on such pleas of the defendant.

Because of the errors indicated, the judgment will be reversed and remanded.

Reversed and remanded.