The Brooks Tire Machine Company v. Wells

• Decision Date: 13 June 1914
• Citation: 167 S.W. 604,182 Mo.App. 50
• Parties: THE BROOKS TIRE MACHINE COMPANY, Appellant, v. W. E. WELLS and T. W. COKER, Respondents
• Court: Missouri Court of Appeals

167 S.W. 604

182 Mo.App. 50

THE BROOKS TIRE MACHINE COMPANY, Appellant, v. W. E. WELLS and T. W. COKER, Respondents

Court of Appeals of Missouri, Springfield

June 13, 1914

Appeal from Howell County Circuit Court.--Hon. W. N. Evans, Judge.

REVERSED AND REMANDED.

Case reversed and remanded.

J. C Dyott for appellant.

(1) By retaining an article purchased by contract an unreasonable time, the vendee waives all defects. He must act within a reasonable time or he will have been deemed to have waived all defects and defenses when asked to pay same. Taylor v. Short, 107 Mo. 384; Johnson-Brinkman Co. v Railroad, 52 Mo.App. 408. (2) If the vendee agrees to pay for the article purchased after the defects become apparent, he ratifies the contract, accepts the chattel, and waives defects. Johnson-Brinkman Co. v. Railroad, 52 Mo.App. 414; Overton v. Brown, 63 Mo.App. 49; Steel & Wire Co. v. Symmons, 110 Mo.App. 48; Groff v. Foster, 67 Mo. 520; Water Co. v Aurora, 129 Mo. 540; Shepard Co. v. Richman, 112 Mo.App. 299. By virtue of the first instruction the jury were deprived of considering the foregoing conclusions of law. (3) Because of the uncontradicted evidence of the defendants, and their written admissions, adverse to their position it is the duty of the appellate court to pass upon the evidence as a matter of law. Knurpp v. Wagner, 195 Mo. 662; Comstock v. Flower, 109 Mo.App. 275; Young v. Van Etta, 113 Mo.App. 550; Meier v. Proctor & Gamble, 81 Mo.App. 420.

N. B Wilkerson for respondent.

If the article which forms the consideration of the note be worthless for the purpose for which it was purchased, the consideration has wholly failed, although it may be of some value for another purpose. And the court well states in that case: How far the evidence establishes this fact is a question for the jury. Ferguson v. Houston, 6 Mo. 407; Murphy v. Allison, 37 Mo. ___; Compton v. Parsons, 76 Mo. 455; Brown v. Weldon, 27 Mo.App. 251 and 99 Mo. 564; Keystone Implement Co. v. Leonard, 40 Mo.App. 477. Where the jury has rendered a verdict upon the evidence in a case, the appellate court will not disturb its finding. Coleman v. Forrester, 163 S.W. 263; Hoover v. City of Fulton, 163 S.W. 292.

STURGIS, J. Robertson, P. J., concurs. Farrington, J., concurs.

OPINION

STURGIS, J.--

This is a suit on several promissory notes, all dated June 30, 1911, and payable at monthly intervals, given by defendants in payment of a machine for tightening and setting wagon and buggy tires without heating same and designated as a Brooks' Cold Tire Setter. The suit was commenced in a justice of the peace court on March 9, 1912, and was removed to and tried in the circuit court at the August term, 1913. The tire setting machine in question was purchased from plaintiff by defendants under a written contract containing the stipulations that: "Should we (purchasers) be unable to make the machine work according to warranty, we agree to write the company (plaintiff), fully explaining in what way the work is not according to warranty, and we further agree to hold the machine and take good care of it until the company instructs us in its operation, or if they deem it advisable, sends a representative to make a demonstration. Failure to notify the company within ten days after receipt of machine shall be an acknowledgment that the machine does the work according to warranty." The warranty referred to is as follows: "We warrant each machine to be well made of good material, and to set and reset tires that are in a serviceable condition (designating the sizes, etc.), and will do the work as well as is possible by any other method or with any other machine if operated according to instructions. We agree to replace for one year any parts showing defective material or workmanship."

The defense which the defendants made to the notes is a failure of consideration and there was evidence to prove that the machine would not do the work it was designed to do; that it was a failure and worthless as a tire setting machine. There was evidence to the contrary on this proposition. There is no claim that there were any defects peculiar to this particular machine, the claim being that no machine of this character and make, constructed and operated on the plan of this one, could be made to do the work it was designed to do. Some witnesses testified, however, that like machines would and did work well and were a success.

The defendants testified that this machine would not and did not do the work it was intended to do from the start and that they ascertained this in a few days after it was received. They admitted, however, that they did not in any manner write to or notify the plaintiff that the machine was not working properly or that they had any fault to find with it; that they retained it and kept on using it until this suit was brought. The machine was received about the date of the contract, June 30, 1911; the defendants retained and used same without complaint to plaintiff and paid the first note when it became due August 1st, thereafter. The notes were at a local bank for collection and the first letter or communication or notice to plaintiff as to defendants paying or not paying the notes is a letter from them to plaintiff dated November, 27, 1911, in answer to one urging payment, saying that defendants had been trying to collect their accounts but had not been able to get any money; that they could not do anything in the way of paying now; that they had not made $ 5 with the machine; that it is a dead loss and that they are willing to send the machine back at any time as they could do nothing with it in this country. There is nothing in this letter intimating that the machine did not work satisfactorily or that it was defective in any way. The next communication from defendants to plaintiff, written for a similar reason, is a letter dated December 19, 1911, saying: "Yours of recent date threatening to place a judgment on us for the amount we owe. We are sorry but we have tried to collect what is due us, so far it is only promises. So now, if you can wait thirty days we can pay you what is due, as we are going to sell some stock and get out of debt." As will be noted, this letter was written more than six months after the machine was received by defendants.

The only excuse given by defendants for not notifying the plaintiff that the machine in question was not working right or would not do the work intended is that a Mr. Wright, at the bank, said to them that it would do no good. This must have been after the first note was paid. The first knowledge that plaintiff had that the defendants were claiming that the machine in question would not do good work and was worthless was after this suit was brought.

It is clear that defendants utterly failed in making any defense to these notes. They admitted the execution of the notes and the written contract containing the warranty and conditions above set out. They admitted they did not comply with the written stipulations, which is in the nature of a condition precedent, to the effect that if they were unable to make the machine work according to warranty, they would write the company, fully explaining in what way the work is not according to warranty, would hold the machine and take care of it until the company could instruct them in its operation or send a representative to make a demonstration. A failure to do this within ten days after the receipt of the machine was stipulated to be an acknowledgment that the machine does the work according to warranty.

The defendants rely in this case on the implied warranty that the machine sold would do the work it was intended for and that if it proved to be worthless for such and any purpose, the defendants could...