| Va. | Jan 12, 1915
delivered the opinion of the court.
Isaac Ney and M. Wurzburger, his partner, were the. owners of a “soft drink plant,” at Harrisonburg, Va., the equipment thereof consisting of machinery, bottles and crates, which machinery had been operated by them for two seasons, 1909 and 1910, and a part of 1911, in the business conducted by them at Harrisonburg, under the style of Harrisonburg Bottling Works. Wurzburger had charge of the operation of the plant and Ney had attended to the office work, bookkeeping and correspondence. Early in 1911 the calls upon Wurzburger for attention to a store conducted by him, also in the town of Harrisonburg, were such that he could not give his personal attention to the bottling business, and it was discontinued. The machinery and equipment of the plant then remained idle for about one year, when upon learning that M. F. Wrenn, L. L. Koontz,. T. M. Wise, Wood Harshbarger, J. F. Pirkey and J. F. Shaver, residing at or near the village of Weyer’s Cave, Augusta county, had organized a bottling company, under the name of the Weyer’s Cave Lithia Bottling Works and were on the market for a bottling apparatus, Ney wrote • one of Wrenn’s associates a letter on February 25, 1912, calling his attention to the fact that the machinery and equipment of his bottling plant at Harrisonburg was for sale. Letters were exchanged, and later both Wrenn and Shaver visited Harrisonburg to see the machinery, and to discuss terms of purchase with Ney and Wurzburger, and after interviews with their associates a purchase of the machinery and equipment, constituting the bottling plant at Harrisonburg, exclusive of “any machinery for the generation of power, or any buildings,” was agreed upon by Wrenn and associates, at the price of $1,350, of which $50 was paid in cash, $625 was to be paid June 1, 1912, and
After this purchase had been agreed upon and the cash payment of $50 made, Ney suggested that the terms of the contract be reduced to writing, and stated that he would have this done and send the agreement to Shaver, who was acting for his company. A short time afterwards Ney had a contract drawn and sent it, together with the bonds evidencing the deferred instalments of purchase money, to .the representatives of the company at Weyer’s Cave, but when this agreement, which had not been signed by either Ney or Wurzburger, was received, the representatives of the company at Weyer’s Cave found that it wholly omitted the warranty upon which the bottling apparatus had been sold to them, and they accordingly wrote out the warranty on a slip of paper and attached it to the agreement, then signed and acknowledged it, and returned it to Ney and Wurzburger. Ney received the paper with the slip attached, put it in his safe, neither he nor his partner, Wurzburger, signing it, and as he states forgot all about it; so that the agreement between the parties as to the sale of the apparatus in question was never reduced to writing.
The apparatus was shipped to Weyer’s Cave, and it was installed under the direction of a man sent from Harrison-burg by Ney for the purpose, but shortly after the apparatus had been put into operation under a skilled man, it was discovered that it was wholly unsatisfactory, and that in spite of all efforts on the part of Wrenn and his associates and on the part of a skilled operator whom they had employed, it could not be made to do satisfactory work, and when they found that the apparatus would not perform the work for which it was intended and sold, they repeatedly endeavored to get Ney to send some one to Weyer’s Cave to examine it and, if possible, to put it in working condition, but Ney, though often promising to comply with these re
The defendants pleaded the general issue and filed two special pleas of set off under the statute—section 3299 of the Code—setting up a breach of warranty, misrepresentation, and failure of consideration, in that the apparatus in question was wholly worthless; that it was old, second hand machinery when plaintiffs bought it and which they warranted would do satisfactorily the work for which defendants agreed to buy it; and that they, the defendants, in addition to the loss of time and the loss of business, had suffered other damage due to the removal of the apparatus from their place of business and storage of it elsewhere.
Upon the issues thus made the jury found for the defendants outright, and upon their pleas of set-off assessed their damages against the plaintiff’s at $250; whereupon, the court, being of opinion that the defendants could not upon their pleas of offset recover any damages for loss of profits in their business, but could only recover for the $50.00 payment they had made and for the actual money expended by them in taking down and storing the apparatus put the defendants on terms to reduce their recovery to $65.00, to which defendants assented, and judgment was thereupon
At the trial of the cause below, plaintiffs took a number of bills of exception to rulings of the court in the progress of the trial, and those exceptions are made the basis of numerous assignments of error in the petition for this writ of error, but we deem it only necessary to consider certain propositions of law submitted and argued in the petition as applicable to the case and as requiring a reversal of the judgment complained of.
The first of these propositions is that the contract of sale of the bottling apparatus to defendants in error was in writing and, therefore, the trial court erred in admitting evidence of personal interviews and other negotiations between the parties with respect to and resulting in the sale of the apparatus in question.
We have already pointed out that there was no written contract between these parties, and Ney’s own testimony given in the case on behalf of himself and his co-plaintiff conclusively shows that there was a consummated and complete sale of the apparatus orally in Harrisonburg, and upon certain definite and admitted warranties that this machinery, apparatus and equipment would do satisfactory work, Ney stating, as he admits, that “it was strictly up to date in every respect and in first class working condition;” that it would do satisfactory work; and that he (Ney) and his associate, Wurzburger, would make it do satisfactory work; that he made these statements intending that defendants in error should accept them as true and rely on them. In these circumstances the admission of evidence of personal interviews and negotiations between the parties or their representatives, which led up to and resulted in a consummated sale and delivery of the machinery, etc., to defendants was clearly not erroneous.
This proposition of law, in the abstract, .is unquestionably sound, but it has no application to this case in which the evidence shows conclusively that the machinery would not do satisfactory work in the uses for which it was purchased and which the sellers warranted that it would do. but failed or refused to make good their warranty. There was no evidence that in the effort to operate the apparatus satisfactorily it was entrusted to inefficient hands.
The next proposition of law contended for is, in effect, that by reason of defendants having discarded the gasometer, which was one of the three essential parts of the apparatus in question, and substituted in its stead another device known as a “regulator,” “they thereby changed the identity of the chattel, so that the subject matter of the suit is not the same as the subject matter of the sale,” and, therefore, defendants should not have been heard to make the defense that the apparatus did not and could not be made to do satisfactory work as plaintiffs admitted that they had agreed that it should do.
The evidence in the case shows that the gasometer was discarded and the “regulator” substituted in its stead because the first named was an antiquated device, while the latter was a modern and efficient device, and this change was made upon the advice of H. S. Butler, witness for plaintiffs in this suit and their agent and representative who was sent by them to install and put in operation this apparatus, Butler saying that the gasometer was utterly worthless. Not only so but Mosely, the expert witness introduced by plaintiffs, testified that the “regulator” was the modern and efficient device, and the one which he him
The next contention of plaintiffs in error is also without merit. It is that the alleged inefficiency of this machinery or apparatus was due to the worn condition of certain parts designated as “repairs” easily supplied at small cost from the factory, and at the utmost entitling defendants to a rebate of purchase money by way of damages, to the extent of the small outlay necessary to replace these parts, and by no means justifying a rescinding of their contract of purchase. This contention goes further and makes claim that the court should have, in its instructions, told the jury that they could only allow defendants’ offset to the extent that plaintiffs’ witness said the cost would have been in making repairs necessary to put the apparatus in question in satisfactory working condition.
In the first place, the defense to this action set up by defendants in their special pleas of set off, as authorized by the statute, supras did not involve a rescission of the contract between the parties, but only set up a claim for the damages sustained by them because of plaintiffs’ breach of their warranty. Secondly, the evidence tended to prove that the apparatus in question was wholly worthless, and therefore unsuited to the purposes for which it was bought,
Plaintiffs, as it would seem, relied upon, as supporting their contention that the claim to damages set up by defendants on account of the breach of warranty, should have been limited to what their (plaintiffs’) expert witness, who had never seen the apparatus, stated it would have cost to make the repairs necessary to put the apparatus in working condition, but, as it appears to us, the court very plainly and correctly stated to the jury the law on this subject in instruction “0,” which the court gave of its own motion. This instruction told the jury that if the defects in the apparatus in question were of an inconsequential or minor character, such as one who is not a skilled mechanic could readily see and remedy, it was the duty of defendants, under the terms of the warranty, to notify plaintiffs, and if plaintiffs did not make the repairs, to make them themselves and charge them to the plaintiffs. Thus the jury were enabled to consider all the evidence for plaintiffs on this line, and the instruction then correctly told the jury that if the defects were serious, or the machinery unsuited to the purposes for which it was designed and purchased, or if the defects, though not in fact serious, were such as one not a skilled mechanic could not readily locate or remedy, it was the duty of defendants to notify plaintiffs to remedy it, failing which the defendants had the right to set the machinery aside, buy other machinery, and set up their damages by reason of plaintiffs’ breach of warranty.
It is next contended that as a matter of law, the court erred in allowing defendants to show that the machinery
It is next urged that the trial court erred in allowing the defendants to show that Butler, who was sent by plaintiffs to Weyer’s Cave to install the machinery, said that the gasometer was of no value and that the machinery would work as well without it.
Plaintiffs were urging at the trial, as one of the reasons why defendants could not rely upon their warranty, the fact that they did not use the gasometer, and, therefore, it was clearly competent for the defendants to prove, among other things, that Butler, the plaintiffs’ own agent and representative, who was sent by them to Weyer’s Cave for the purpose of installing and putting the machinery in operation, had then and there stated that the gasometer was of no value and advised defendants not to have it put in. Not only was this evidence competent to show the condition of the apparatus, but to explain the reason why the defendants did not install and use the gasometer. But if there was any good reason for contesting the competency of this evidence, its admission could not have materially affected the rights of plaintiffs, for the fact plainly appears from their own evidence that the gas regulator which defendants did use was an infinitely better device than the gasometer discarded upon the advice of Butler, so that none of the failure of the apparatus to operate satisfactorily could possibly have been attributable to the substitution of the regulator for the gasometer.
After the evidence in the case had gone to the jury the court was asked by the respective parties to give numerous
The instructions given (and set out in the official report of this opinion) fairly and fully submitted to the jury the case on every material point involved, applying the law to the facts which the evidence tended to prove as justly and as fairly as the respective parties to the controversy could reasonably have asked. Having thus instructed the jury, it was not, as this court has repeatedly ruled, error to refuse other instructions asked. Among the latest expressions by this court affirming that rule is to be found in Bowman v. First Nat’l Bank, 115 Va. 463, 80 S.E. 95" court="Va." date_filed="1913-11-20" href="https://app.midpage.ai/document/bowman-v-first-national-bank-6812850?utm_source=webapp" opinion_id="6812850">80 S. E. 95; Luck Construction Co. v. Russell, 115 Va. 335" court="Va." date_filed="1913-09-11" href="https://app.midpage.ai/document/luck-construction-co-v-county-of-russell-6812825?utm_source=webapp" opinion_id="6812825">115 Va. 335, 79 S. E. 393.
Another, and equally as well established rule is that instructions in a case are to be read as a whole, and if, when so read, it can be seen (as in the case here), that the instructions could not have misled the jury, their verdict will not be disturbed, even though one or more of the instructions was defective. C. & O. Ry. Co. v. McCarthy, 114 Va. 181, 76 S. E. 319.
The instructions in this case to which no specific objection is clearly pointed out appear to us so manifestly correct and so fully and fairly covered every fact in the case which the evidence tended to prove as to leave the plaintiffs no just cause for complaint of them.
The remaining question is whether or not the trial court erred in refusing to set aside the verdict of the jury and award the plaintiffs a new trial.
We have already, in discussing other questions, gone quite fully into the facts which the evidence tended to prove, and deem it necessary to add but little here with respect to the sufficiency of the evidence to sustain the verdict of the
No good purpose could be subserved by discussing further the evidence in the case. Suffice it to say that the jury would not have been, in our judgment, warranted in find
As observed, the jury found a verdict in excess of offsets in favor of defendants against plaintiffs for $250, which was made up in part by loss of profits or business, but the court, with the assent of defendants, reduced this recovery to $65.00, which latter sum is made up of the cash payment of $50.00 they had made to plaintiffs on the purchase price of the bottling apparatus in question and the actual money expended by defendants in taking down and storing the apparatus subject to the order and control of the plaintiffs.
Upon the whole case, we are of opinion that the judgment of the circuit court complained of is right and, therefore, it is affirmed.
Affirmed.