Walker & Rogers v. Malsby Co.

Evans, P. J. (After stating the foregoing facts.) 1. The defendants, in their plea of failure of consideration of the engine, recognized their waiver of any other warranty except that limited in the contract. Their plea was, that there had been a breach of this limited warranty, which was to the effect that the engine was manufactured of good material and good workmanship, and that by proper management it would perform well; and, after complaints, if the sellers were not able to make it work well, [402] and the fault was in the engine, it was to be taken back. Their complaint is, that the engine was of faulty construction; that the eccentric rod would break when the machinery was put in operation. The trouble with this plea is, that, in accepting the limited warranty, the defendants covenanted that they would not claim damages for defective construction or for failure of consideration, unless such claims were made by registered letter to the seller within ten days from the time the engine started. They seek to evade this provision by setting up an estoppel. That estoppel was that they verbally complained to the seller on two occasions of a defective eccentric rod, and that the seller authorized them to supply this defect at their expense. They contended that the seller’s conduct in acting upon their verbal report of a defective eccentric rod amounted to a waiver of the stipulation requiring ten days written notice by registered letter of a structural .defect in the engine, 'inasmuch as the frequent breaking of the rod was notice that the defect was not in the rod, but in the casting and alignment of the engine. The warranty clause respecting the engine provided for two contingencies, one for duplicating defective parts, and the other for structural defects in the engine of such a character that it would not perform its service. If the defect related to a part, the warranty clause provided that such part was to be supplied, if the defect was discovered and the defective part exhibited to the seller within a month. The plaintiff complied with this provision of the warranty. The other contingency related to claims for damages for a general structural defect; and with respect to such, the stipulation was that the buyers must notify the seller by registered mail, within ten days of the starting of the engine, of such defects, as a condition of .claiming damages for a failure of consideration. This was not done, and for this reason the defendants were cut off from pleading failure of consideration. Fay & Egan v. Dudley, 129 Ga. 314 (58 S. E. 826); Mayes v. McCormick Harvesting Machine Co., 110 Ga. 545 (35 S. E. 714). The request to duplicate defective parts, and compliance therewith by the vendor, was not notice of the general defective condition of the engine. 2. In the plea relating to the shingle-mill the defendants do not undertake to claim damages because of a failure of consideration. The plea sets forth, by way of inducement,'the circum [403] stances attending the purchase of the mill; representations of the seller; the unsuccessful efforts to operate the mill; its worthlessness. The plea then proceeds to aver, that the purchasers acquainted the seller with its defects and deficiencies, informing it that the mill was not in use but was stored under a shed on the defendants’ premises; whereupon the plaintiff agreed to take it back in full satisfaction and accord of its purchase-price ($750), and requested that it remain under the shed until the plaintiff could sell it; that the mill is still under the shed and is the property of the plaintiff. This defense to the notes amounts to this: the defendants bought several pieces of machinery for an aggregate sum, and upon the terms expressed in a written contract; notwithstanding the defendants were cut off by their written agreement from pleading failure of consideration to the shingle-mill, because of their failure to give the notice, required by the contract, yet the plaintiff voluntarily agreed in parol to take back a part of the machinery in satisfaction of so much of the aggregate sum as that part represented in the entire purchase-price, and that the plaintiff accepted the shingle-mill by agreeing to take it as it stood under the shed of the defendants’ premises. It is a plea of partial accord and satisfaction, or partial payment of the debt by the alleged resale of the specific'property. The circumstance that the consideration of the notes included the original purchase-price of the machinery agreed to be accepted as a credit in no wise affects the legal proposition made by the plea. It would be the same as If the defendants told the plaintiff that they had an automobile under the shelter, which they offered to the plaintiff to be applied as a credit fox a stated amount on their notes, and the plaintiff had accepted the offer. A contract between' the parties to an executed sale to resell the goods is within the statute of frauds. 20 Cyc. 241. This statute requires that every contract for the sale of goods, wares, and merchandise to the amount of $50 or more shall be in writing, except the buyer shall accept part of the goods sold, and actually receive the same, or give something in earnest to bind the bargain, or in part pajnnent: Civil Code, § 2693, par. 7. The agreement to give a credit for the price of the shingle-mill on the notes is not a sufficient part payment, unless a receipt to that effect was given, or the price was actually credited on the notes, or other memorandum of the fact was made by the original vendor. 20 Cyc. 252. [404] Tlie circumstances relied upon by the defendants to show delivery and acceptance are insufficient for that purpose. Where possession is retained, by the vendor, something more than the parol agreement of sale relating to the transfer of the title and the possession is necessary to constitute constructive delivery. The statute requires something more than mere words; it calls for acts, to dispense with a writing. It must appear that after the parol contract was made, some act was done within the intention of the parties indicating an assertion of dominion over the goods by the vendee. It is no objection that such act be done by the vendor as the agent of the vendee. The vendee majr constitute his vendor his bailee to accept the goods, but such bailee must do some act on the faith of the parol contract which characterizes his possession as that of agent or bailee of the vendee, or the vendee must do some act in recognition of the change in the character of the possession. The leading English case on the subject is Elmore v. Stone, 1 Taunton, 457, where the plaintiff, who kept a livery-stable and also dealt in horsés, proposed to the defendant to sell him a pair of horses at a given price, but the defendant offered a less price, which was rejected; at length he sent word that the horses were his, but that the plaintiff must keep them at livery for him, and the plaintiff manifested his acceptance of this by removing the horses from his sale-stable to his livery-stable. It was held by Lord Mansffeld, that the plaintiff, from that time, possessed them not as owner but as bailee of the vendee; that the removal of the horses to his livery-stable under an agreement that the purchaser was to pay for their keep was an act done by the vendor as the agent 'or bailee of the vendee, so as to take the case out of the statute. This ruling has been adhered to in subsequent English cases. Castle v. Sworder, 6 H. & N. 828; Beaumont v. Brangeri, 5 M. G. & S. 301; Marvin v. Williams, 6 E. & B., Q. B., 786. This rule has been followed in this State. In the case of Daniel v. Hannah, 106 Ga. 91 (31 S. E. 734), the debtor verbally agreed to sell to his creditor a certain number o-f bales of cotton to be credited on an account due by the former to the latter; and it was held that there was an acceptance and delivery of the cotton when the debtor moved it to a public place designated by the creditor and agreed upon by the parties in their contract of sale. The subsequent case of Tift v. Wight & Weslosky Company, 113 Ga. 681 (39 S. E. 503), does not lay down the contrary principle. In [405] that case a customer agreed to purchase a certain quantity of oats in the house of the merchant at a given price, and the oats' were weighed, set aside, and the customer’s name placed on them, and they were charged to him on the books under an agreement that this should be done, and that the customer should subsequently send and get the oats. It was held'that this transaction was sufficient to establish a completed sale of the oats. The segregation of the oats after the contract of sale, and marking them, were acts indicating a change of ownership and a transfer of dominion by the seller to the purchaser. In the case at bar no act is alleged to have been done by the vendor or vendee, after the alleged contract of resale, which indicated a change in the character of defendants’ possession. The only fact relied upon to establish a constructive delivery was the verbal contract of resale, by the terms of which the defendants were to keep the mill under the shelter until the plaintiff could sell it. The machinery was not moved, nor is any act of the defendants alleged to have been done as the agents of the plaintiff. The purchase-price being for more than $50, the parol agreement was within the statute of frauds; and as nothing was done to bring it within the exception, the court properly struck this plea. Judgment affirmed. A11 the Justices concur.