276 F. 509 | 5th Cir. | 1921
The York Manufacturing Company (hereinafter called the plaintiff) brought suit in the United States District Court for the Southern District of Georgia at Savannah against the South Atlantic Packing & Provision Company (hereinafter called the defendant) to recover the. price of certain ice-producing machinery installed for it under a written contract. The machinery was to be affixed to and used with certain other machinery of the defendant.
The contract provided for the furnishing and installing of certain ■described machinery and appliances as per specifications and contained two guaranties:
(1) That the plant when changed as specified will be capable of producing 100 tons of merchantable raw-water ice per day of 24 hours when in full and continuous operation and when properly operated in accordance with plaintiff’s instructions.
(2) That the coal consumption of this plant when producing 100 tons of ice per 24 hours will be not less than a ratio of' 16 tons of ice per ton of 14,000 b. t. u. coal burned, based on the guaranteed boiler evaporation of 9 pounds of water per pound of coal with 185 pounds of steam 160 degrees superheat at boiler.
The guaranty of quality of ice was based on water being taken from well known as No. 3 which had been tested.
The contract further provided that the machinery should be furnished and the plant be “ready for charging” on or about March 15, 1916 (erroneously stated as 1915), provided the defendant had performed within the time specified therefor all the agreements set forth in the specifications accompanying said contract to be by it performed; in event of defendant’s default, the time for completion should be correspondingly extended.
There was a dispute as to whether the defendant did so perform; but by mutual consent the time for performance was waived, the plaintiff adjusting the defendant’s plant to continue making ice meanwhile. The plaintiff presented a proposed written agreement for such extension, but the defendant by resolution of its board of directors refused to accept or sign the same.
Many demands were made by. defendant of the plaintiff during the time when the work of furnishing the machinery and placing it in the plant was in progress. These demands appear in the main to have been complied with.
The contract also provided that when the plant was ready for charging the plaintiff should furnish a written notice to defendant of that fact, and that if for a period of 30 days after the plant so furnished was erected ready to charge the defendant should fail to notify the plaintiff in writing of any claim that the said machinery, apparatus, or plant as furnished did not fulfill the terms and requirements of the contract, specifying in what particular or particulars it failed, this should in itself be considered an acknowledgment by the purchaser that the said machinery, apparatus, or plant as furnished did fulfill the said terms and requirements, and should constitute a complete acceptance of the same as fulfilling all the terms and requirements of the contract.
If such notice of failure was given within said 30 days, the plaintiff was to remedy any such defects.
■ If the parties disagreed as to the same, then the plaintiff had the privilege to elect, on 30 days’ notice of its intention so to do, to remove its machinery and refund any purchase money paid which
On June 5, 1917, said plaintiff served on the defendant a written notice, dated June 1st, stating that the plant was erected ready to charge in accordance with said contract.
The contract provided that plaintiff’s engineer should remain with the plant' for 15 days from the date the plant was ready to charge in order to instruct the defendant’s men and make needed adjustments, C. Munger remained, as such engineer, until June 28th.
On July 6, 1917, the plaintiff, not having heard anything from defendant in reply to its notice dated June 1st, wrote calling attention to its completion of the contract, the nonpayment of the portion of the purchase money due, and declared the entire price of the machinery furnished due under the terms of the contract.
The defendant pleaded in answer to the suit:
(a) The delay in the completion of the contract from March 15, 1916, until the present time.
(b) The failure to furnish machinery as specified iu said contract.
(c) The failure of the plant to produce 16 tons of ice to one ton of coal, 14,000 b. t. u., and the failure of the plant to produce 100 tons of merchantable ice in 24 hours’ continuous operation.
Two amendments to said answer were offered, which the court refused to allow.
The court excluded all testimony offered to show that the plant did not comply in all respects with the contract and did not fulfill its terms and requirements, on the ground that defendant, having failed to give notice of such claim of defects and failures within 30 (lays after receiving notice that the. plant was erected ready to charge, had under the terms of the contract accepsted said plant as fully complying with said contract and its guaranties and could not thereafter attack - '¡lie same.
He admitted the evidence tendered as to the delay in completion after March 15, 1916, and the claim for damages therefor.
Construing together the clause of the contract requiring written notice to he given to the purchaser of the time when the plant is ready for charging, and the provision that if for a period of 30 days after
Further construing this contract, we think that the requirement of it that the plant will produce 100 tons of ice on a 24-hour continuous run, and will make at least 16 tons of ice to one ton of coal, 14,000 b. t. u., upon the conditions named in such warranty, is conditioned by the requirement that any claim that it does .not fulfill •the requirements of such guaranty shall not be open to the purchaser unless he makes the same within 30 days from the time when he receives notice that the plant is erected ready for charging. The law is well laid down by the Supreme Court of Georgia, as follows:
Where, in a sale of machinery, there is an express warranty as to quality, and by the terms of the warranty liability of the seller is predicated upon conditions which must be performed by the buyer before liability upon the part of the seller is to attach, such as that the buyer is to take the property on trial for a specified time, and, upon its failure to fulfill the warranty, give written notice at once to the seller at a designated place, and also to the agent of the seller through whom the property was received, stating in what parts and wherein the property fails to fulfill the warranty, the seller will not be held liable on the warranty unless the buyer complies with such conditions.” Brooks Bros. Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754, 755, 72 S. E. 40.
To the same effect, also, Mayes v. McCormick Machine Co., 110 Ga. 545, 35 S. E. 714; International Harvester Co. v. Dillon, 126 Ga. 672, 55 S. E. 1034; Walker & Rogers v. Malsby Co., 134 Ga. 399, 67 S. E. 1039; Cuthbert Ice Co. v. York Mfg. Co., 20 Ga. App. 695, 696, 93 S. E. 279.
The court did not err in excluding the evidence offered that the written notice given by the plaintiff to the defendant that the plant was erected ready for charging was in any way withdrawn by Munger, there being no evidence in the record of any authority on the part of Munger to withdraw the same and the evidence in the record showing that the defendant had expressly been put on notice by the plaintiff, previously, that none of its subordinates employed on the work had any authority to change any of the provisions of the contract.
In regard to the testimony excluded by the court, the testimony of each witness was offered as a whole.- The burden of the testimony of each witness objected to bore mainly upon the question whether the plant as completed complied with the contract, and its exclu*
It cannot be said that on the questions of fact raised by the remaining pleadings there was no evidence which would sustain a finding that there had been an implied agreement extending the time for the completion of the contract on the condition of plaintiff doing the work necessary to allow the manufacture of raw-water ice during the intervening period with defendant’s plant as then constituted, and also that there was some evidence that plaintiff had not suffered pecuniary damage. As the court was requested by both parties to direct a verdict in the case, under the above authorities, his direction thereof in favor of the plaintiff is not subject to review', no error of law appearing,
The judgment of the District Court is therefore affirmed.