Marth v. Wiskerchen
| Decision Date | 05 January 1915 |
| Citation | 172 S.W. 410,186 Mo.App. 515 |
| Parties | H. C. MARTH, Appellant, v. ED. A. WISKERCHEN, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Lewis Circuit Court.--Hon. Chas. D. Stewart, Judge.
Judgment reversed and cause remanded. (with directions).
R. J McNally, Hilbert & Henderson and A. F. Haney for appellant.
(1) The trial court erred in sustaining defendant's objection to the question put to plaintiff, on direct examination, as to whether he was acquainted with the price of new engines, such as this engine, at Ewing, Missouri, in 1910. This being sold as a secondhand engine, the jury had a right to compare the price at which it was sold to defendant with the price of a new engine of the same kind, in passing upon the understood character and standard of perfection of this engine and the question whether it reasonably complied with the warranty. (2) The court erred in giving instruction number 2 on the part of defendant. This instruction authorizes the jury to find that defendant returned the engine "to the plaintiff or his authorized agent," and directs the jury to find a verdict on such finding. This instruction is highly improper and prejudicial, for the reason that there is no evidence that plaintiff had given any authority to anyone either directly or indirectly, to represent him as his agent in the matter of receiving back the engine from defendant. The giving of an instruction when there is no evidence upon which to base it is reversible error. Evans v Graden, 125 Mo. 72; Groneweg v. Estes, 144 Mo.App. 418; Franz v. Hilterbrand, 45 Mo. 121; Bowles v. Lewis, 58 Mo.App. 649; Nelson Mfg. Co. v. Shreve, 94 Mo.App. 518. (3) Instruction number 4 given on the part of defendant is erroneous, because there is no evidence on which to base it. See authorities cited under preceding point. Said instruction is unsupported by the evidence because (first) there is no evidence that plaintiff was absent so that defendant could not deliver the engine to him when he returned it to Ewing; (second) there is no evidence that defendant caused notice of such return to be given to plaintiff as soon as practicable. If the engine did not comply with the warranty embodied in the written contract of sale--that is, if it was not in running order and in good shape when delivered to defendant--then it was the duty of defendant, upon discovering any failure in said warranty, if he desired to take advantage of it for the purpose of rescinding the contract of sale, to promptly return said engine to plaintiff and promptly notify him of his intention to rescind the contract on account of the breach of said warranty. The failure to return the engine to and to notify plaintiff until after a delay of about two months after the alleged discovery of the defect is, as a matter of law, an unreasonable delay, the evidence showing no valid excuse therefor; and the defendant will not be permitted to set up such attempted return and rescission as a defense to the action for the purchase price of the engine. Steam Heating Co. v. Gas Fixture Co., 60 Mo.App. 148; Johnson v. Whitman Agricultural Co., 30 Mo.App. 100; Metropolitan Rubber Co. v. Monarch Rubber Co., 74 Mo.App. 266; Tower v. Pauly, 51 Mo.App. 75; Emery v. Boehmer Shoe Co., 151 S.W. 174; Sterling Silver Mfg. Co. v. Worrell, 154 S.W. 866.
Noel, Rouse and McKee for respondent.
--This is an action to recover the purchase price of a traction engine alleged to have been sold and delivered by plaintiff to defendant. The cause originated before a justice of the peace, and found its way to the circuit court, where, upon a trial before the court and a jury, there was a verdict and judgment for defendant, and the plaintiff appealed.
On or about November 15, 1910, plaintiff, who was a general agent for the Advance Threshing Company, and who was then at Ewing, Missouri, sold the engine in question to defendant for the sum of $ 150. It appears that a traveling salesman for another company learned that defendant wanted to purchase a secondhand engine, and that plaintiff had one, and brought the parties together. Plaintiff and defendant met the following day in the implement and harness store of one Henry Lesch, who was a local agent of the Advance Threshing Company, having been so appointed by plaintiff. After some discussion the parties agreed upon a sale of the engine to defendant for $ 150, delivered at Ewing. Defendant thereupon signed a paper, which (as it appears in the statement filed with the justice of the peace) is as follows:
It appears that the engine was then in fact at or near Steffenville, but that plaintiff had previously arranged to have it taken to Knox City and did not know whether the parties who had agreed to move it had done so or not. It was brought to Ewing on the following Sunday, and delivered to the defendant. On Monday and Tuesday defendant and one Miles Walker and the latter's son, Russell Walker, both engineers, tested it, running it about the streets. It seems that the engine stood the test well, but that defendant insisted that plaintiff "guarantee" the boiler and crown sheet thereof for one year. Plaintiff thereupon executed a writing to this effect, and defendant gave plaintiff his check for $ 150. Defendant and Russell Walker then (Tuesday afternoon) started to run the engine out to defendant's home, some four miles from Ewing. It seems that they had proceeded but a short distance when the engine gave trouble and they returned with it and put it on "the right of way" behind Lesch's store, and defendant told Lesch to notify plaintiff that he would not take it. And defendant thereupon stopped payment upon the check which he had given to plaintiff.
Plaintiff was in Ewing when defendant accepted the engine and left with it; and the only evidence in the record touching his departure therefrom is the testimony of Lesch, who says: "Next morning (Wednesday) I had to go out in the country and Mr. Marth (plaintiff) went to Illinois." It further appears from Lesch's testimony that he did not notify plaintiff of the return of the engine until some time in the following January, when he wrote plaintiff in regard to another matter. And plaintiff testified that he did not learn thereof until some time in January, 1911, when he returned to Ewing; that he then found that the crown sheet was cracked, and had it repaired, and on January 26, 1911, wrote defendant a letter, which was introduced in evidence, demanding a compliance with the terms of the sale. It appears that the local bank wrote plaintiff at the home office of the latter's company in regard to the dishonoring of defendant's check, and plaintiff testified that he did not know of it at the time, and did not learn that payment had been stopped on the check for "a good while afterwards."
There is much in the record touching the condition of the engine, and particularly the crown sheet, which need not be here detailed. Nearly all of it tends to show that the engine was in reasonably good order, and the crown sheet not cracked, when delivered to defendant. Miles Walker, defendant's engineer, testified that it was "in good running order" and "in good shape" when delivered. Russell Walker, the engineer who, with defendant, started with the engine from Ewing, testified that he let cold water into the hot boiler after stopping to clean out the injector, which in his opinion caused the crown sheet to crack; and that no leak had theretofore been observed therein.
I. One of the defenses below was that the memorandum of the sale signed by defendant had been altered after the execution thereof, by erasing the words "Knox City" and inserting "Steffenville" in lieu thereof. Defendant denied under oath that he executed the instrument set out in the statement filed; and he and two other witnesses testified that, as executed, the writing contained "Knox City" instead of "Steffenville." Plaintiff testified that the instrument had not been in anywise altered; but that both Knox City and Steffenville were mentioned when the writing was prepared.
The court, in instructing the jury, pursued the theory that an alteration of the instrument, in the manner indicated above by plaintiff or someone acting for him, without defendant's knowledge or consent, would render the same void and prevent a recovery by plaintiff. As to this it may be said that a strict rule has obtained in this State respecting the unauthorized alteration of an instrument by the holder, (now modified as to instruments within the Negotiable Instruments Law). It is unnecessary to here review the many cases on the subject, but see ...
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