Rumsey & Co. v. City of Bessemer

SHARPE, J. Plaintiff carried on the business of manufacturing and selling engines. In the course of correspondence between it and E. H. Lopez, a representative of the city of Bessemer, looking to the purchase by the city of a hand fire engine, plaintiff wrote Lopez “we would be willing to send one of our 246 engines for trial, the city to pay freight charges both ways in case the engine was not accepted.” To this Lopez replied: “Your letter was, read before the council at its regular meeting last night, and I was instructed to write you accepting your proposition to ship one of your Fig. 246 engines on trial, with the understanding that if it conies up to your representations and proves satisfactory on trial, that the city will purchase it, otherwise it may be returned, the city paying freight charges both avuvs.” Afterwards on Nov. 2d, an engine was shipped from plaintiff to defendant and.as a result of certain tests to which it was subjected, the city refused to buy the engine, and after paying freight charges, returned [332] it to plaintiff with advice that it was not satisfactory. This suit was for the price or value of the engine and of certain hose attachments furnished for use with, hut. not as á part of, the engine and resulted in a verdict for defendant. The matters assigned as error relate in part to the findings of the jury which are not reviewable, and in the remainder to the court’s action in giving and refusing charges, which we think involved no reversible error. Charges 2, 3 and 4, given for defendant, were in harmony with section 62 of the act establishing a new charter of Bessemer, which provides that, “no suit upon any claim or charge for money or damages shall be maintained against said city, until application shall have been made to the board of Mayor and Aldermen for the payment thereof, and the said application refused in whole or in part, or the said board fail at its next regular meeting to act tlrereon.” Without compliance with this statute, plaintiff’s claim could not have become a subject of suit. — Schroder v. Colbert Co., 66 Ala. 137; Barbour County v. Horn, 41 Ala. 114. In behalf of defendant there was evidence tending to show the rejection of the engine was not capricious, but was because its capacity did not come up to plaintiff’s representations and was consequently, by the board of Mayor and Aldermen, found to be insufficient for the city’s purposes. If this evidence was true, defendant, under the agreement, by which it received the engine, had the right to decline the contemplated purchase, provided it returned the engine within a reasonable time; and whether the return was within that limit was a question properly submitted to the jury by charges 5 and 7. For obvious reasons the giving of charge 8 for defendant and the refusal of the general affirmative charge requested by plaintiff was proper. The record recites that charge 6 was given in behalf of plaintiff, thereby implying that it was given at plaintiff’s request. Therefore, without regard to its merits, plaintiff can take nothing by its execption to that charge. Affirmed.