Edenton-Mackeys Ferry Co. v. Fairbanks-Morse & Co.

BeogdeN, J. Tbe defendant resists recovery, chiefly upon two grounds: 1. Tbat tbe contract provides tbat tbe defendant “shall not be liable for damages or delays caused by such defective material or workmanship, and it is agreed tbat tbe liability of tbe company under all guarantees, either expressed or implied, is specifically limited to tbe replacement free of charge, ... of parts failing, through defect in workmanship or materials, within tbe time and in tbe manner aforesaid.” 2. Tbat tbe contract provides tbat “tbe company shall not be liable for any damages due to delay in delivery caused by fires, strikes, combinations of labor, or other causes beyond its control, and tbe receipt upon arrival of any part of said machinery and materials shall eonsti- *488 tute a waiver of any claim for damages due to any delay. Should the purchaser, because of delayed delivery, be held to have justifiably declined to receive said machinery or materials upon arrival, any damage due to such delay shall be measured solely by the rental value of similar machinery for the period of the delay, and the company’s liability shall, in no event, exceed such amount.” These grounds of resistance to recovery are based upon the testimony of the agent of the plaintiff to the effect that, although plaintiff knew that the propeller wheel, the shaft and the stuffing box delivered by the defendant were too small, still no request or demand was made upon the defendant to supply such equipment with other equipment suitable for the purposes contemplated by the parties. The testimony for plaintiff further disclosed the fact that, although it knew of the failure of the defendant to furnish materials contemplated by the contract, nevertheless it accepted and paid the purchase money for the engine. The plaintiff, however, contended and offered evidence tending to show that the propeller wheel, the shaft, and the stuffing box were parts of the propeller equipment of the engine, and that without the propeller equipment in controversy the boat could not be operated. The plaintiff further offered evidence tending to show that assurances were given it by the general agents of defendant that the defendant “would arrange all matters satisfactorily.” The exact language of witness for plaintiff was: “I had the assurance of Mr. Hill and Mr. Cross that everything would be adjusted satisfactorily to us; that everything would be taken care of. . . . In December, 1926, and prior thereto, they had told me with reference to the propeller wheel and shaft that was there, that these matters would be adjusted. They told me so afterwards when we had to buy them, just before the boat left the railway, the latter part of December or January.” The evidence further disclosed that the defendant furnished an engineer or mechanic to install the equipment, and that said engineer • informed the defendant that the equipment complained of could not be used in the boat. These contentions and the evidence supporting them raise the legal question as to whether the assurances of adjustment given by general agents of the defendant after the controversy arose warranted the submission of the case to the jury. A contract, substantially similar to the one involved in this case was discussed and construed in Fairbanks v. Supply Co., 170 N. C., 315, 86 S. E., 1015. In that case the Court remarked: “Contracts like this one are somewhat one-sided and should not be too strictly enforced in favor of the seller, but with some regard to the just rights of the buyer.” Declaring the law applicable to the facts, the Court said: “It will be found that, in most of the above cited *489 eases, tbe courts held that suck a transaction as the one here between the agent of the seller, who is specially commissioned to adjust the matter of controversy between the parties, and the buyer, by which, upon representations and promises that the machine will be put in good or satisfactory working order, the agent obtains the notes for the price, will amount to a waiver of the stipulation as to supplying new parts for those proved to be defective or for a return of the machine, and enable the buyer to recover his proper damages to the extent he has been injured and within the well settled rules relating to the assessment of damages in such cases.” Kester v. Miller, 119 N. C., 475, 26 S. E., 115; Allen v. Tompkins, 136 N. C., 208, 48 S. E., 655. In the case at bar the plaintiff offered evidence tending to show that defendant, in response to a telegram sent by plaintiff on 30 November, 1926, replied: “Our Mr. Hill expects to be in Edenton tomorrow and will discuss this matter in person with you,” and that thereafter the general agents of the defendant from time 'to time gave assurances that “everything would be adjusted satisfactorily.” This testimony and other testimony of like tenor bring the case squarely within the principles of law announced in Kester v. Miller and Fairbanks v. Supply Co., supra. No error.