Lake Superior Loader Company v. Huttig Lead & Zinc Company

• Citation: 264 S.W. 396,305 Mo. 130
• Decision Date: 31 July 1924
• Docket Number: 24002
• Parties: LAKE SUPERIOR LOADER COMPANY v. HUTTIG LEAD & ZINC COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

264 S.W. 396

305 Mo. 130

LAKE SUPERIOR LOADER COMPANY v. HUTTIG LEAD & ZINC COMPANY, Appellant

No. 24002

Supreme Court of Missouri

July 31, 1924

Appeal from Jackson Circuit Court; Hon. Samuel A. Dew Judge.

Affirmed.

Cooper Neel & Wright for appellant.

(1) The court erred in sustaining the objections of plaintiff's counsel to questions propounded to the witnesses Brown, Dyke and Douse, in reference to shovels of the same identical model made by the plaintiff company, shipped in the same car at the same time, with the three machines involved in this case, sold to the same sort of mining companies as the defendant, in the same territory, and sought to be worked and used in similar ground -- not being adapted or adaptable to the kind of mining done in said Joplin-Picher district. 1 Jones's Commentaries on Law and Evidence, pp. 661, 682, 885; Hawkins v. Railroad Co., 182 Mo.App. 331; Cox v. Polk, 139 Mo.App. 260; Aetna Ins. Co. v. Railroad Co., 123 Mo.App. 513; Stevenson v. Gunnings Estate, 64 Vt. 601; Siser v. Shaffer, 43 W.Va. 769; McElheny v. Pittsburg Ry. Co., 147 Pa. 1; Perrin v. United States, 169 F. 27; Hayes v. Met. Street Ry. Co., 182 Mo.App. 400; Hales v. Raines, 162 Mo.App. 62; Gourley v. Callahan, 190 Mo.App. 670; Crawford v. Stock Yards Co., 215 Mo. 394; Powell v. Frisco Ry. Co., 229 Mo. 246, 273. Where a party voluntarily offers testimony, although not necessarily relevant to the issues, it is too late for him to object to rebuttal testimony offered by his adversary upon the same subject, and such testimony should be received. Pollock v. Gunter, 162 Ala. 320; Kuhn v. Eppstein, 239 Ill. 555; Bowen v. Eaton, 46 Ind.App. 65; Brown v. Perkins, 1 Allen (Mass.) 89, 96; Scattergood v. Wood, 79 N.Y. 263; Sherfey v. Evansville Ry. Co., 121 Ind. 427; Spalding v. Ry. Co., 98 Iowa 205; McIntire v. White, 124 Ala. 177. (2) The court erred in giving plaintiff's Instruction 10. Bond v. Ry. Co., 122 Mo.App. 207; Klamp v. Rodewalli, 19 Mo. 450; Coleman v. Roberts, 1 Mo. 101; Black River Co. v. Warner, 93 Mo. 374, 384; Armstrong v. Ry. Co., 62 Mo.App. 645.

Charles M. Miller for respondent.

(1) The trial court properly limited the evidence of the operation of the shoveloader to defendant's mine. (a) Because the elements and factors that enter into the successful of unsuccessful operation of the shoveloader vary greatly, according to the mine conditions. (b) Because defendant did not offer any evidence to convince the trial court that the conditions in other mines were the same as in defendant's mine, and, on the contrary, the evidence showed otherwise. (c) Because the exclusion of references to the operation of the shoveloader in other mines was within the judicial discretion of the trial court, and is only reviewable where the discretion has been abused. (d) Defendant is in no position on the record to successfully complain of the ruling of the trial court in excluding references of the operation of the shoveloader in other mines. Osborne v. Eyster, 195 Mo.App. 520; Craver v. Hornburg, 26 Kan. 94; Jewell Filter Co. v. Kirk, 200 Ill. 382. (2) Instruction 10 is not subject to the criticism urged by defendant, which at most is hypercritical. Thresher Co. v. Briggs, 202 Mo.App. 603. (3) The trial court did not err in giving plaintiff's instruction No. 13, relating to the burden of proof upon the alleged evidence of fraud, and advising the jury about misrepresentations and statements of opinion. Bank v. Hutton, 224 Mo. 42, 70; Peters v. Lohman, 171 Mo.App. 465, 484; Peoples National Bank v. Central Trust Co., 179 Mo. 629, 663; Davidson v. Hobson, 59 Mo.App. 130; Anstee v. Ober, 26 Mo.App. 665, 669; Nichols v. Stevens, 123 Mo. 96, 117; Brown v. Mining Co., 194 Mo. 681, 699; Moody v. Baxter, 167 Mo.App. 521; Bank v. Brisch, 140 Mo.App. 246, 250. (4) The trial court did not err in the admission of testimony as to witness Talboys, relating to the price of zinc ore at the times in question. McCrary v. Railroad, 109 Mo.App. 567, 571.

OPINION

James T. Blair, P. J.

Respondent instituted this action and recovered judgment for the contract price of three Armstrong shovels, Model No. 11, freight thereon, certain spare parts, and for interest.

The second amended answer first admits the signing of the contract and denies all other allegations, and then avers that appellant's signature to the contract was induced by false representations made by appellant's salesman concerning the suitability of the shovels for the work in appellant's mine and their capacity for loading earth, rock and ore into cans wherein these were removed from the mine; that respondent represented that the "shovels were adapted to the character of the ground, dirt and ore in defendant's mine, and that said shovels would load from 200 to 225 cans of dirt in eight hours, and that said shovels would operate successfully and economically, and and that they were practical and would operate without interruption, and that plaintiff would and did guarantee that said shovels would do this work for defendant company;" that appellant relied on these representations, was induced thereby to sign the contract, and that the representations were false. The particulars in which the shovels fell below the representations are then averred. Another averment is that appellant, with respondent's knowledge, was buying the shovels for specific work in its mine and for the work in character and quality which it had been averred respondent represented the shovels to have capacity and fitness to do, and that respondent "both expressly and impliedly warranted that its shovels were adapted to handle ore in defendant's mine, and that said shovels would load from 200 to 225 cans of dirt in eight hours and do so economically and consecutively," and that "said shovels wholly failed to meet such requirements and did not come up to said warranties at all;" that there was total failure of consideration; that the shovels are without value to appellant and had been tendered back to respondent. The reply is a general denial.

Respondent offered the contract, proved the delivery of the described shovels to appellant, and appellant's refusal to pay. Appellant offered evidence which tended to prove the averments of the answer with respect to the warranty of suitability for the work and that of operative condition. Only one machine was put in operation. There was evidence of frequent troubles in getting this machine to work at all, and evidence that when it could be made to operate mechanically it demonstrated its unsuitability for the work of loading cans with sufficient speed and continuity to comply with the warranty pleaded or so that the operation was economically feasible. Respondent then offered evidence which tended to show that appellant did not give the shovel a fair trial in good faith; that the price of ore dropped between the date of the contract and the receipt by appellant of the machine, and that hand shovelers became more plentiful and less expensive; that appellant did not furnish a sufficiently heavy track, except for one of 16-foot length; that only one track was provided upon which the shovel could work, whereas others were necessary unless the shovel was to stand idle, after it cleaned up along the face beside which the track ran, until holes were drilled and more rock shot down, and this process required an hour or more on each occasion; that cans were not furnished at times because the hand shovelers who were working took them and thus exhausted the available supply and left the shovel idle for that reason, and at others the mill was shut down and loading had to be stopped for that reason; that with the mill running and sufficient cans at hand, tracks and appliances as described in the contract, a shovel would load more than 225 cans in an eight-hour shift, and this shovel did load at a greater rate of speed; that after the stiffness of the new machine wore off and minor adjustments were made, as generally required with new machinery, the shovel in use worked without mechanical trouble and was suitable for the work in appellant's mine. But one shovel was uncrated and tried. The evidence occupies about 600 pages.

It was shown that prior to appellant's purchase of the shovels one had been installed in the Montreal mine, and appellant's president and superintendent had gone to the Montreal mine to inspect it. They say the shovel was not in operation when they were there. There is evidence the superintendent had said he and the president had investigated the shovel in operation in the Montreal mine and there was no question about its ability to load, but that the problem was to keep enough broken dirt ahead of the machine and secure good can service and that he would attend to that.

With respect to the comparative conditions in the mines in the district, appellant's then superintendent testified:

"Q. What was your object in going over to the Montreal mine? A. Mr. Victor said he had one in operation over there.

"Q. Why did you want to see one over there? A. I wanted to see it work.

"Q. Well, you were going to buy one, or thought you were, and you wanted to see the machine and see it work, didn't you? That was the purpose in going over there? A. Yes, sir.

"Q. Now about how far from the Montreal mine in miles is the Huttig Lead & Zinc Mine Number 1? A. Oh, about two or three miles.

"Q. It was the same mining field at that time? A. Oh, yes.

"Q. And they had about the same conditions there in that mine that you had in your mine, didn't they? A. In what respect?

"Q. Well, in the method of mining dirt and things of that kind the structure of the mine? A. Well, there is some slight difference in other mines in that district.

"Q. But they all encounter about the same mining difficulties,...