Stillwell, Bierce & Smith Vaile Co. v. Biloxi Canning Co.

Terral, J., delivered the opinion of the court. The appellee bought of appellant a Victor ice and refrigerating machine and machinery for the price of $5,000, one-fourth the price to be paid on the shipment of the machine and machinery and the remainder at future periods. A default occurred in the payment of the credit part of the purchase money, and this suit followed. The appellant, upon the sale of the machine and machinery, guaranteed that the ice machine would cool four storage rooms of named dimensions to a specified temperature and produce three tons of ice each day of twenty-four hours of continuous operation, or would cool two storage rooms and produce four tons of ice each day of continuous operation. The ice machine contracted for was what is known as a £ ‘ compression plate machine. ” In it the ice is formed in large cakes, unwieldy for handling and difficult to be released from the plates without breaking. These disadvantages were as well known to the buyer as to the seller, and as to them there was no guaranty. The case was tried in the court below upon rigid and inflexible rules, and the jury were instructed, in effect, that, if the machine did the work guaranteed, they should find for the appellant, and, if it did not do the work guaranteed, they should find for the appellee. The appellant’s testimony tended to show that the machine per [785] formed, or fulfilled the guaranty made of it, and the testimony offered by the defendant below tended to show that the machine did not, within the stipulated time, make the quantity of ice which appellant guaranteed it would make, but how much less than such stipulated quantity was not shown, or offered to be shown. The insistence of the defendant was that, if the machine did not entirely fulfill the guaranty as to the full quantity of ice to be made, the plaintiff could recover nothing, although the machine might be of the value of the price to be paid for it. We think the rule applied to the facts of the case was too rigid and inflexible for a practical solution of the contention between the parties. In January, February and March, 1896, the machine and machinery were erected upon the premises of the defendant, and, being so erected, it was clear from the evidence that it was operated for some time under the supervision of appellant’s engineer for the instruction of the defendant’s engineer, and for a sufficient time for the defendant to make up his mind as to the acceptance of the machine. In fact, on the twentieth day of May, 1896, and after the machine had been under test for more than ten days- — the time specified in the contract for that purpose — the appellee wrote to the appellant that the machine was not up to contract, and after the twenty-fifth it would refuse to pay any bills for experimenting with the plant, and would hold the machinery as security for what had been paid upon it and for damages. Yet, in direct contravention of this notice and claim, the appellee proceeded, after the twenty-fifth day of May, to operate said ice machine, and did operate it from June 23 to July 14, 1S96, inclusive, for its own use, and sold and used together the product of the operation. In fact, it only ceased to operate the machine by reason of the seizure of it by the sheriff under the writ issued in this suit for the purchase money. The use of the machine by the appellee after its notice of May 20, 1896, and its operation by the appellee from June 23, 1896, constituted an acceptance of it which it cannot [786] repudiate or deny. It was so used by the appellee rightfully or wrongfully, and a wrongful use will not be indulged; and such use amounted to a claim of the property as its own, and was tantamount to an acceptance of it under the purchase contract. The intention of the appellee as manifested by its acts must override and control the expressions in its letter to appellant, on the same subject. Benj. Sales (6th Am. ed., by Bennett), sec. 703, says: “ When goods are sent to a buyer in performance of the vendor’s contract, the buyer is not precluded from objecting to them by merely receiving them; for receipt is one thing and acceptance another. But receipt will become acceptance if the right of rejection is not exercised within a reasonable time, or if any act be done by the buyer which he would have no right to do unless he were the owner of the goods.” The appellant, however, having guaranteed the ice machine to-do certain specified work, it is bound, notwithstanding the acceptance of the machine by appellee, to make good such guaranty; for the acceptance of the machine by the appellee did not bind it to pay the whole purchase price, if in fact the machine did not answer the guaranty, and it was less valuable-to the appellee on that account. In such case the guaranty survives the acceptance, and the appellee would have a right, in-an action for the purchase money, to recoup the damages suffered in consequence of the breach of guaranty. And the measure of damages is the difference between the value of the ice machine as. it in fact is and its value as it would have been as guaranteed. Upon the evidence produced, if it should appear that the ice machine delivered by appellant and accepted by appellee is of less value than the one contracted for, then the appellee may reduce the purchase price by such difference of value. 5 Benj. Sales (6th Am. ed., by Bennett), pt. 2. It. is incumbent upon appellee, having accepted the ice machine, to show that the guaranty has been broken, and that the machine delivered is not equal in value to the machine contracted [787] for, and also to show the extent of the diminution of value, or the difference in value. It is perhaps needless to say that the appellee, having by its conduct accepted the ice machine and machinery, is entitled to no deduction of the purchase price except that rising from some breach of guaranty. Studer v. Bleistein, 115 N. Y., 316, 325, s.c. 22 N. E., 243, s.c. 5 L. R. A., 702. Reversed and remanded.