Berlin Machine Works v. Marbury Lumber Co. , 146 Ala. 542 ( 1906 )

DOWDELL, J.

This is a suit by the ^plaintiff, the Berlin Machine Works, against the Marbury Lumber Company on a written contract for the price of certain machinery sold and delivered. The contract .sued on is set ont in the complaint. The defendant filed five pleas. The first plea, ivas withdrawn, and demurrers were sustained to the second and fifth. Pleas 3 and 4 set up substantially the same defense,, viz., the breach of the warranties attached to the contract sued on because of the failure of the machinery to do the quantity and quality of work therein represented. Demurrers were interposed by the plaintiff to each of these pleas, which were by the court overruled. Thereupon the plaintiff suffered a non-suit, reserving the question, and prosecutes this appeal under the act approved February 2, 1903 (Gen. Acts 1903, p. 34). As suggested by counsel for appellant, the only question involved is the proper construction of the contract sued on, and this question is presented by the demurrers to pleas 3 and 4.

With reference to the machinery sold and delivered by plaintiff to the defendant, the contract contained the following clause, viz.: “In case of rejection, consignee will promptly deliver it to the consignor F. O. B. at Beloit, Wisconsin”'— and, further: “A retention of the property forwarded after thirty days from date of arrival shall constitute a trial and acceptance, be a conclusive proof of the truth of all representations made by or for the consignor and void all its contracts of warranty express or implied.” The guarantee following the specifications, and which is attached to the contract, concludes as follows: “And we further allow ten days from arrival on cabs at Marbury, Alabama, of this machine as a trial period to demonstrate the above facts exist in this machine and that the specifications have been fulfilled in every sense.” These provisions in the contract- and guaranty must be taken together with the contract and guaranty and so construed as to give force and meaning and operation according to the intention of the parties to the contract. To do this, as we understand and construe the provisions of the contract and guaranty, tire guaranty applies only for the trial of-the machine, and,"upon a failure of the machine on such trial, authorizetl the rejection of it, and for this purpose the ten days from arrival of the machine on ears at Marburv were allowed. And in case of rejection after such trial it became the duty of the defendant to deliver the machine to the consignor, the plaintiff, “f. o. b. at Beloit. Wisconsin,” and the failure of the defendant to so deliver and a retention by it for 30 days after the arrival of the machine at Marlmrv, by the express terms of the contract, fixed the liability of the defendant to pay the price of the machine.

The complaint averred a retention of the machine by the defendant, and this averment was not denied by the pleas. The simple averment in the pleas of the warranties contained in the guaranty attached to the contract and the averment of the rejection of the machine by the defendant, without more, was not a sufficient answer to the cause of action made by the complaint, and the demurrers to the pleas should have been sustained. . The judgment appealed from must therefore be reversed, and the cause remanded.

Reversed and remanded.

Haralson, Anderson, and Denson, J.J., concur.