51 Fla. 516 | Fla. | 1906
The appellees' as complainants filed their bill in the Circuit Court for Santa Rosa county, to enforce a mortgage lien upon realty and a shingle mill situate in said county, alleging the precipitation of the indebtedness by the failure of the mortgagors, Otis and wife, to keep the property insured. The defendants answered, admitting the execution of the notes and mortgage to the complainants, but averring in substance that the consideration therefor was a part payment of the purchase price of a certain shingle mill, known as the Wittich Mill, including engine and boiler made by Houston, Stanwood and Gamble, which complainants sold and agreed to deliver to defendants by January, 1903, at Mulat, Florida; the complainants made and delivered their bill of sale for one shingle mill complete, which bill of sale is made part of the answer, that complainants represented that said mill was a shingle mill complete and that said representation was as to a material fact relied on and was the inducement for the purchase, and that the mill delivered was not complete but lacked certain specified necessary and essential articles. and things of which the complainants were promptly notified on delivery and called upon to make good the warranty and supply the missing portions, but had refused so to do; that the sum of .$756.57 will have to be expended to make the mill complete as wárranted, and further that the defendants have been damaged in the sum of $1250 in the loss of the use of the shingle mill, which sums they offer to set off, and pray that the bill of complaint be dismissed.
The bill of sale is as follows: “Know all men by these presents, That we, J. J. McCaskill and Robert E. L. Mc-Caskill, doing business under the firm name and style
Witness this our hands and seals this 2Sth day of November, A. D. 1902.
Signed, sealed and delivered in presence of:
j. j. mccaskill (Seal)
B. COLVIN . R. E. L. McCASKILL (Seal)
Victoria, Georgia. J. J. McCASKILL & CO.(Seal).”
To this answer the general replication was filed and testimony was taken before an examiner. Upon final hearing the court decreed for the complainants in accordance with their prayers, and from this decree the appeal is taken.
We are of the opinion there was error in the 'decree. The briefs for the respective parties are confined largely to the questions of the sufficiency of the evidence to support the court’s findings and to the correct interpretation of the bill of sale, whether it be a warranty of the completeness of the mill, as a shingle mill of a mere indentification of the property sold.
Many objections were interposed to proffered testimony upon the ground that it tended by parol to alter the effect of a sealed instrument, but we do not find that
It is shown that McCaskill & Company had purchased a shingle mill from one Wittich, that Otis who was familiar with the mill and which he had seen shortly theretofore in the possession of Wittich as a shingle mill, having all the necessary machinery, opened up negotiations with'McCaskill to buy the mill; that the mill as purchased by McCaskill from Wittich did not have all the
It may be that the court was misled by the principle announced in Reddick v. Mickler, 23 Fla. 335, 2 South. Rep. 698, and subsequent cases based thereon. This principle has not been invoked or touched upon in the briefs, and we do not feel therefore disposed to review those cases at length but say merely that the doctrine there announced is a severe one, based upon technical rules of the common law as to real warranties, and not to be extended to embrace guarranties of personal property.
The decree is reversed for further proceedings not inconsistent with this opinion.