Boulware v. Victor Automobile Mfg. Co.

• Decision Date: 03 January 1911
• Citation: 152 Mo. App. 567,134 S.W. 7
• Parties: BOULWARE v. VICTOR AUTOMOBILE MFG. CO.
• Court: Missouri Court of Appeals

134 S.W. 7

152 Mo. A. 567

BOULWARE v. VICTOR AUTOMOBILE MFG. CO.

Springfield Court of Appeals. Missouri.

January 3, 1911.

Rehearing Denied February 6, 1911.

1. APPEAL AND ERROR (§ 977) — REVIEW — DISCRETION OF COURT — RULING ON MOTION FOR NEW TRIAL.

The trial court must be allowed a wide discretion in ruling on motions for new trial, and when a motion is sustained upon some ground, the effect of which lies peculiarly within its knowledge, its action in sustaining the motion will not be disturbed provided it is a ground that, if true, might well influence his action.

2. EVIDENCE (§ 442) — PAROL EVIDENCE — SUPPLEMENTING WRITTEN CONTRACTS.

A written order for goods is not a formal contract which will merge all previous oral agreements or warranties between the parties and preclude oral testimony, tending to establish a warranty not included in the order signed by one party and accepted by the other.

3. EVIDENCE (§ 442) — PAROL EVIDENCE — VARYING WRITTEN CONTRACT.

If a written contract shows upon its face that it includes the entire agreement, parol testimony is inadmissible to prove an obligation not therein expressed.

4. SALES (§ 267) — CONTRACT — WARRANTY.

An express warranty and an implied warranty may exist together in a contract of sale when not inconsistent, and an express warranty to exclude an implied warranty must be such as to show that it contains all the obligations assumed by the warrantor.

5. SALES (§ 267) — CONTRACT — WARRANTY.

A signed order from a buyer for an automobile to be manufactured for him contained a printed statement that the seller's automobiles were thoroughly tested before leaving the factory and that it warranted them to be perfect when shipped, but, should any imperfection appear within a year, it would repair or replace parts. Held, that the provision was not a contract, but a mere representation not imposing any liability other than would rest upon the seller in the absence of the provision, and was not exclusive of an implied warranty that the machine was reasonably fitted for the purpose for which it was bought, which purpose was stated to the seller before the purchase.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Robert M. Boulware against the Victor Automobile Manufacturing Company. There was a verdict for defendant, after which a motion for a new trial was granted, and defendant appeals. Transferred from St. Louis Court of Appeals. Affirmed.

Albert B. Chandler, for appellant. Chilton Atkinson and John M. Wood, for respondent.

COX, J.

This is an action to recover the purchase price paid by plaintiff to defendant for an automobile. Trial was had before a jury, and verdict returned in defendant's favor. The court then sustained a motion for a new trial filed by plaintiff, and from that action of the court defendant has appealed.

Plaintiff, in his motion for new trial, alleged 12 reasons why a new trial should be given, and the court in its order sustaining the motion recited that it would sustain it upon the first, third, fourth, fifth, eighth, ninth, tenth, eleventh, and twelfth grounds. Part of these grounds alleged that the jury had been influenced and prejudiced against the plaintiff by reason of the conduct of witness, J. F. Harrington, president of defendant company, by laughing, making gestures and grimaces while on the stand testifying as a witness, which belittled plaintiff in such a way that the jury were thereby prejudiced against him. The trial court must be allowed a very wide discretion in the matter of sustaining motions for new trial, and, when a motion for new trial is sustained upon some ground, the force and effect of which lies peculiarly within the knowledge of the trial court, his action in sustaining the motion will not be disturbed, provided it is a ground that, if found to be true, might well influence the action of the trial judge. In this case, whether or not the conduct of the president of defendant company while on the stand was of such a character as to captivate the jury and to lead them to discredit plaintiff's testimony was a matter peculiarly within the knowledge of the trial judge, and we assume that he was honest in holding that the plaintiff's case had been injured in such a way as to indicate that he had not had a fair trial, and his action in sustaining the motion for a new trial upon this ground must be affirmed.

Since the case is to be retried, it becomes important that the other questions urged in this court should receive attention. The controversy in this case upon its merits rests upon whether or not defendant made certain warranties at the time plaintiff ordered the automobile. The plaintiff in his petition alleges that on or about the 8th of April, 1909, defendant offered to build and construct for and deliver to plaintiff at the city of Canton, Mo., for the sum of $725 an automobile to be warranted by defendant to be of first-class material and workmanship, the engine and other machinery and other appliances to properly perform their functions, and the automobile to run readily without difficulty and satisfactorily to plaintiff over the roads (heretofore described by plaintiff to defendant) upon which plaintiff desired to run the car that he might purchase; that he relied upon this warranty and paid $250 of the purchase price at the time he gave the order for the machine, and paid the balance when it was delivered to him, and that the machine, after thorough trial, had wholly failed to comply with the warranty as made by the defendant ; that he had offered to return it, and had notified defendant that he had rescinded the contract. The evidence showed:

That plaintiff lived upon a farm some miles distant from Canton, Mo. That he went to St. Louis for the purpose of purchasing an automobile to use upon the roads between his home and the city of Canton. That he intended to purchase from another company, but they did not have the machine that he wanted, and that he then incidentally fell into the place of business of defendant, and after some considerable time spent in negotiations, during which time Mr. Harrington, the president of defendant company, explained to plaintiff the merits of the automobile manufactured by defendant, and took plaintiff in one of his machines for a ride out to Forest Park and back. That during this conversation plaintiff explained to Mr. Harrington that he wanted an automobile that would run upon the roads between his home and the city of Canton. That the road was crossed by some branches, and that there was sand in the road at these places, and that he wanted a machine that would run over these sandy places in the road without difficulty, and that Mr. Harrington assured him that the machine he was proposing to manufacture for him would run over those roads readily and to the satisfaction of plaintiff. That plaintiff relied upon this representation, and was induced by it to purchase the machine. That he did purchase it. That they agreed upon the price, and that there at the office of defendant in the city of St. Louis they presented to him and he signed an order for the machine. This order was as follows:

Orders are accepted subject to delay from strikes, labor troubles, or other unavoidable causes.

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