Whitehead & Son v. Lane & Bodley Co.

BRICKELL, C. J. 1. It may be that, under the contract of sale, the'title to the mill and machinery vested in the purchasers, only upon the condition that the purchase-money was paid ; and that, upon default in payment, the sellers could have reclaimed it. But the sellers had also the security of the mortgage, and it was their right to pursue that security, rather than resort to a reclamation of the things sold. It is the common case of a mortgagee, having a legal remedy for the recovery of the mortgage debt, preferring the equitable remedy to foreclose the mortgage. 2. There is an error in the mortgage, in describing the mortgaged premises as situate in square number four in the city of Greenville, while their real location is in square number seven. What would be the effect of the misdescription, if there was not a further designation and description of the premises, by which they may be precisely identified, it is not important to consider. There is the further description, that they are situate between Conecuh and Chestnut streets, fronting seventy feet on Conecuh street, and are known as the “DeWitt Dillard place,” which is inapplicable to any part of square number four. The rule is of general application, that if from any part of the description the premises intended to be conveyed clearly appear, the conveyance will not be defeated, because other circumstances of description are added, which are inapplicable, [43] or not capable of definite application.—Clements v. Pearce, 63 Ala. 284. 3. The principal point of contention is, whether the mill and machinery were sold to the appellants as fitted for the particular purpose, the squaring of large timber, for which they intended it; or whether the sale was of things described and defined, the appellants relying upon their own judgment as to their fitness for the purpose for which they designed them. There is conflict in the evidence upon the point. The burden of proof rests upon the appellants, and we are not prepared to say it is shown, by a preponderance of the evidence, that there yvas a contract, or warranty, or representation, by the agent of the sellers, that the mill and machinery were fitted for any particular purpose. The contract is in writing; the things sold are described, and the things delivered correspond to the description. In the absence of fraud, or misrepresentation, there is no room for parol evidence which would vary the contract. The most that can be justly said, however, in view of all the evidence, is, that the appellants have the misfortune of liavmg purchased the mill and machinery upon the supposition that it would answer the purpose for which they designed it, and find upon trial that it is unsuitable.' The misfortune is of frequent occurrence; and when there is no fraud, no breach of contract, or of warranty, on the part of the seller, the purchaser must bear it. If the cross-bill had been entertained, relief upon it could not have been granted; and from its dismissal the appellants have sustained no injury. Affirmed.