Gullett Gin Co. v. Varnado Gin Co.

MOUTON, J. In July, 1926, plaintiff company sold to defendant a Double Box Press with automatic tramper, ram and other accessories for $1,819.00. A payment of $606.00 was made in cash, and for the balance of the purchase price $1,212.00, two promissory notes, each for $606.00 were executed in favor of plaintiff. On a mortgage given to secure the credit portion of the price, plaintiff took out executory proceedings to have the machinery seized and sold for the payment of the notes and the accrued interest. The defendant company, through Robert D. Pornea, the owner, obtained the issuance of an injunction to arrest the sale. The injunction is grounded on allegations of fraud and misrepresentation by the agent of plaintiff company in making the sale, and because of redhibitory defects in the thing sold. Defendant company, plaintiff in injunction, asks the annulment of the sale, the avoidance of the two notes sued on, and for the recovery of the $626.00 cash payment made by it with interest from July 15, 1928. Judgment was rendered maintaining the injunction, cancelling the notes, but refusing the restoration to plaintiff of the $606.00 cash payment made on the day of sale. The court also in a companion suit against plaintiff in injunction, rendered judgment rejecting the demand of the Gullett Gin Company brought on an open account for $385.71, for gaskets,. packings, etc. The main contest between the parties depends on a proper solution of the issues involved in the injunction suit, which, by consent, was tried on- the demand on the open account, with the understanding that a separate judgment would -be rendered in each case. Plaintiff in injunction, it is shown, prior to its purchase of the machinery from the Gullett Gin Company, was using a screw-press for the baling of cotton at its gin. With a view of increasing the number of bales of cotton it could put out daily, a Double Box Press with automatic tramper, ram, etc., was - bought by plaintiff in injunction from the Gullett Gin Company which was represented in the deal by George W. Hall a traveling salesman. The machinery was installed not long after the sale and for a short while seems to have given satisfaction. This satisfactory operation was, however, of very short duration. In a few days, the Varnado Gin Company, purchaser, experienced serious trouble with the ram which was essential to the proper functioning of this Double Box Press. Men of sufficient experience and skill tried in vain at the Varnado Gin, where the machinery had been in [160] stalled, to get satisfactory results in baling the cotton. The bales came out wedged-shaped, larger at one end than at the other, and the operation of the machine was so inefficient that a continuation of baling the cotton became practically impossible. The Gullett Gin 'Company was called up at Amite where it has its domicile, and was told of the trouble that the Varnado Company were experiencing in trying to operate the machinery with the ram that had been originally installed on it. The Gullett Gin Company sent a mechanic to remedy the trouble; the original ram was found defective and a new one was set in, with which the new press was again operated, but' without better results. The fact is, that the second ram was less satisfactory than the first, and no satisfaction could be obtained from this Double Box Press. The vice or defect in the thing sold rendered it so absolutely useless, or its use at least so inconvenient and imperfect, that it must be supposed the Varnado Gin Company would not have bought it had it known of the vice. That being the situation, plaintiff in injunction under the provisions of Article 2520 C. C. would be entitled to an avoidance of the sale. Counsel for the Gullett Gin Company contends that the Varnado Company cannot obtain relief under the provisions of that Article, because the implied warranty which ordinarily exists in all sales, was restricted or modified in the special warranty which formed part of the contract in the instant ' case. ■ This special warranty on which counsel relies, reads in part as follows: “Said machinery is warranted to be of good material and to perform well, if properly operated, by competent persons.” It also provides that in case the purchaser be unable to get the machine to operate well, “telegraphic” or “written notice” must be given to the Gullett Gin Company. Counsel’s first contention in reference to this special warranty is that the Varnado Company failed to give it either the written or telegraphic notice as therein provided. The proof is that the complaint about the inefficiency of the machine was given by telephonic communication, and shows that the Gullett Gin Company, upon receiving this message, sent a mechanic to remedy the trouble, and, as a matter of fact, thereafter sent a new ram for the operation of the machine. If the Gullett Gin Company desired to stand on the stipulation that a message, either written or by telegram was a prerequisite to any assistance for tho remedying of any fault or deficiency in the machine, it could have ignored the message sent it by telephone. In sending a mechanic to remedy the trouble, the written or telegraphic communication provided for in the warranty was ignored and waived. It was too late to raise such an issue after the Gullett Company had attempted to correct whatever caused the failure of the Varnado Company to successfully operate the machine. Counsel for the Gullett Company contends that it fulfilled its warranty by effectively replacing the parts which Fornea, owner of the Varnado Company, claimed were defective. It is true that the Gullett Company attempted to replace these parts, but it is equally certain that it was not successful in remedying these defects. In that respect it failed to live up to the obligations of its warranty, and the consequence was that the machinery failed to “perform well” as was guaranteed in the special warranty, although it was properly operated as was required in the special warranty stipulations. [161] The lower court decreed a cancellation of the notes, and refused the reimbursement to plaintiff of the cash payment on the contract which meets with our approval, and the judgment in the injunction suit is therefore affirmed. The Court also rejected the claim on the open account in the other suit which was for the recovery of the price of gaskets, packings, etc., that had been used to remedy the defects in the ram, and for a follow-block which was also shown to be defective. The price for these items is not recoverable. There is also a claim on the open account for an insurance premium paid by plaintiff. Counsel for the Gullett Company says, as defendant failed to return and actually prohibited the return of the ram and oil tank, the company is entitled to collect therefor, and for' the accessories. The evidence fails to support this conclusion of fact contended for by counsel, and the demand for the insurance premium, and for the accessories, was properly rejected by the judgment of the District Court which will also be affirmed, but in a separate judgment.