Gaar-Scott & Company v. Nelson
| Decision Date | 04 June 1912 |
| Citation | 148 S.W. 417,166 Mo.App. 51 |
| Parties | GAAR-SCOTT & COMPANY, Appellant, v. JOHN H. NELSON et al., Respondents |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
May 6 1912, Submitted on Briefs
Appeal from Lewis Circuit Court.--Hon. Chas. D. Stewart, Judge.
REVERSED AND REMANDED.
STATEMENT.--This is an action in replevin wherein plaintiff, a corporation seeks to recover possession of a certain traction engine, a separator, a stacker, a feeder and other farm machinery connected with the threshing of grain.
The answer, after a general denial of the indebtedness, sets up the transaction referred to, as one by which plaintiff, through its agent, sold the property to defendants. Setting up two chattel mortgages and the notes which defendants had executed to plaintiff to secure the payment of the purchase price of the machinery, it is alleged that the machinery was sold by plaintiff for the purpose of threshing wheat and other small grain but that on account of defects in the construction or material used the separator failed to do the amount or quality of work a machine of that kind should do and which plaintiff had represented to defendants that it would do, and that it was worthless for the purpose for which it was sold to defendants. It is further averred that upon discovering this defendants immediately notified plaintiff, through its agent, that the machine would not work properly; that plaintiff through that agent sent two men at different times to put the machinery in order; that these men did nothing which improved its condition, of which fact it is averred that plaintiff, through that agent, was informed and that plaintiff had thereupon assured defendants that the machinery should be put in first class shape and that relying on these assurances, defendants continued to thresh with it during the season of 1904, and that being informed again by defendants of the defective condition of the machinery plaintiff, through the agent named, urged them to keep the machinery and continue making payments on it and that plaintiff would put it in shape to do first class work in 1905; that plaintiff again sent a man to fix the machinery who did some work on it and assured defendants that it was in shape to do proper work, and defendants, relying upon these statements, again began threshing with the machinery in the season of 1905, but found the machinery inefficient, of which they again informed plaintiff through the agent named. Whereupon it is averred that plaintiff refused to do anything further in connection with the machinery and demanded payment in full of the unpaid notes or of the unpaid balance due. It is further set out in the answer that defendants had paid plaintiff $ 500 for the machinery more than it was worth when delivered to them and defendants prayed judgment for the return of the property and for the recovery of $ 500 excess paid.
The reply, after denying certain matters set up and admitting that the property was of the value of $ 600, as averred, sets up the written contracts under which the machinery was sold to defendants by plaintiff, particularly the warranty contained in those contracts, and the failure of defendants to comply with the conditions precedent attached to the warranty, by failing to give plaintiff the notice required by the provisions of the warranty and by failing to return to plaintiff the alleged defective machinery and failure to give written notice of the return to plaintiff as required by the terms of the warranty and contract when it should appear that any part of the machinery did not fill the requirements of the warranty. Denying the breach of the warranty, the reply also pleads these matters of failure on part of the defendants as waiver and by way of estoppel.
It appears by the testimony in the case that plaintiff, through one John M. Brant, its soliciting agent, procured a written order from defendants addressed to plaintiff, whose home office is in Richmond, Indiana, for a separator and its appurtenances, these to be loaded on the cars at Richmond, Indiana, on or about May 1, 1904, and shipped to Brant, consignee, at La Grange, Missouri, defendants by the terms of this order agreeing to receive this machinery on its arrival, subject to all the conditions of the warranty printed therein, paying therefor $ 710, as evidenced by promissory notes and also to give a chattel mortgage on the machinery as a first lien on it to secure the payment of the notes. On that same day, this same agent, Brant, secured from defendants a contract and order for a traction engine, to be shipped by plaintiff on or about November 4th to Brant, as consignee, at La Grange, Missouri, defendants agreeing to receive this engine on its arrival subject to all the conditions of the warranty embodied in the contract order and to pay $ 1200 for it, $ 200 in cash, the rest in certain notes and in some secondhand machinery taken at an agreed valuation. Separate orders were also taken by the same agent on the same day for the stacker and a feeder. The provisions of the contracts and warranty therein were alike in all these contract orders. Summarized they are that plaintiff was to ship these several pieces of machinery on cars at Richmond, Indiana, on or about the first of May, 1907, consigned to John M. Brant at La Grange, Missouri, who was the local sales agent of plaintiff, in consideration whereof defendants agreed to receive the machinery on its arrival, "subject to all the conditions of the warranty printed below, pay freight and charges thereon from Richmond, Indiana," and to pay the notes mentioned and secure their payment by chattel mortgages on the machinery. The warranty, in substance, attached to these several contracts commenced this way: Then follow eight specifications under this warranty, substantially as follows: By the first it was agreed by the parties that the contract is divisible and that each article ordered is ordered and sold at a separate price, it being set out how these prices are to be ascertained, "and that said articles are sold subject to the following express warranty and none other, which said warranty is hereby made to apply separately to each machine or attachment herein ordered."
By the second it is provided that each of the articles of machinery, except the belting furnished on the order, is warranted to be made of good materials, well constructed and with proper use and management to do as good work as any other of the same size and rated capacity made for the same purpose. This clause also provides in detail for the handling of the notes in case the machinery has been settled for in one series of notes. It is not necessary to consider it.
The third provision is as to the belting, and is not here material.
By the fourth it is expressly agreed that the plaintiff company shall be liable only for the return of cash or notes payable to its order actually received by it and not for any machinery or other property taken thereon as part payment.
The fifth provides that any modification of price or terms of payment shall not in any way affect the warranty and its conditions.
The sixth provides that all warranties are to be invalid and void if the machinery is not settled for when delivered.
The seventh provides that title to the goods shall not pass until settlement is concluded and accepted by plaintiff.
The eighth provides that it is mutually understood that "use of said machinery, after the expiration of the time named in the above warranty, shall be conclusive evidence of the fulfillment of the warranty and full satisfaction to the undersigned, who agree thereafter to make no other claim on Gaar, Scott & Company; . . . neither shall the fact of any local or traveling agent or expert of this company rendering assistance of any nature after the above warranty has been concluded, operate as an extension of the conditions thereof."
This, in the form of a proposal by defendants to plaintiff, is signed by defendants, it being stated above their signatures that they had read the warranty and are acquainted with its contents and accept it. Below these signatures of defendants is the signed acceptance by plaintiff.
It appears by the uncontradicted evidence in ...
To continue reading
Request your trial