35 S.W.2d 982 (Mo.App. 1931), Anglo-American Mill Co. v. Twin City Mercantile & Mfg. Co.

Citation:35 S.W.2d 982, 225 Mo.App. 329
Opinion Judge:[225 Mo.App. 330] SMITH, J.
Party Name:ANGLO-AMERICAN MILL CO., A CORPORATION, APPELLANT, v. TWIN CITY MERCANTILE & MANUFACTURING COMPANY, A CORPORATION, RESPONDENT
Attorney:Dearmont & Russell for appellant. Homer F. Williams and Davis & Damron, for respondent.
Judge Panel:SMITH, J. Cox, P. J., and Bailey J., concur.
Case Date:February 23, 1931
Court:Court of Appeals of Missouri
 
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Page 982

35 S.W.2d 982 (Mo.App. 1931)

225 Mo.App. 329

ANGLO-AMERICAN MILL CO., A CORPORATION, APPELLANT,

v.

TWIN CITY MERCANTILE & MANUFACTURING COMPANY, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, Springfield

February 23, 1931

Appeal from Circuit Court of Bollinger County.--Hon. B. H. Boyer, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Dearmont & Russell for appellant.

(1) In passing on these conditional warranties or guarantees, the appellate courts of Missouri are unanimous in holding that purchasers, before they can escape liability, must comply with the conditions therein contained, substantially, or plead and prove a waiver of such conditions on the part of the seller. No waiver is pleaded and certainly none is proven. Nichols, Shepherd Co. v. Larkin, 79 Mo. 264; Nichols, Shepherd Co. v. Rhoadman, 112 Mo.App. 299; Machine Co. v. Wells, 182 Mo.App. 50. (2) A purchaser of machinery under a warranty requiring him to do certain things within a certain time after the machinery was put in use, who fails to do those things, and keeps and uses the machinery even after being sued, is estopped to refuse payment for it on the ground of a breach of warranty. Gaar-Scott & Co. v. Nelson, 166 Mo.App. 65.

Homer F. Williams and Davis & Damron, for respondent.

(1) As soon as defendant tried out the mill and found it would not do the work for which it was ordered, it offered to return the mill and called upon plaintiff for shipping instructions, which plaintiff refused to give. The unconditional offer to return by the buyer, where actual return is not permitted by the seller is equivalent to actual return. Wells v. Gates, 4 Mo.App. 1; D. M. Osborne & Co. v. Mulliken, 88 Mo.App. 350; Field Bros. v. Green, 236 S.W. 1076; 35 Cyc. 430, 431. (2) Plaintiff is not in position to assert estoppel in pais against defendant because of defendant's occasional use of the mill after he offered to return it. Plaintiff did not plead estoppel, and to be availed of, it must be specially pleaded. Cent. Nat. Bank v. Dora, 109 Mo. 51, 52; McLane v. Trust Co., 292 Mo. 122, 123; Grooms v. Morrison, 249 Mo. 550; Turner v. Edmonson, 210 Mo. 428; Blodgett v. Perry, 97 Mo. 273, 274; Laughlin v. Wells, 283 S.W. 993.

SMITH, J. Cox, P. J., and Bailey J., concur.

OPINION

Page 983

[225 Mo.App. 330] SMITH, J.

This suit was instituted in the circuit court of Bollinger county on the 19th day of May, 1928, by the plaintiff to recover the balance claimed to be due on an open account. The balance claimed to be due as set out in the petition was $ 300.50 but the plaintiff admitted in the course of the trial that there was an error of $ 6.75 in the account and that the plaintiff was only entitled to a judgment of $ 293.75.

The defendant admitted the account was correct to the extent of $ 293.75, but defended against the account on the ground that the plaintiff had sold to the defendant certain machinery on a warranty, and that the machinery did not comply with the warranty, and in its counterclaim asked for judgment against the plaintiff for $ 296.17 paid to the plaintiff on the machinery and also for $ 26.25 paid by the defendant for freight charges on said machinery.

The reply was a general denial. There is no controversy over the pleadings, so we do not set them out here.

The case was tried before the court without a jury, and at the close of all the testimony the plaintiff asked for the following instruction, which was refused: "Now, at the close of all the testimony, the court declares the law to be that the plaintiff is entitled to recover $ 293.75 with interest thereon from October 28, 1927, at six per cent, or a total sum of $ 328." This was the only instruction requested by either side, and none was given.

The court took the case under advisement from the 11th day of September, 1929, to the 12th day of March, 1930, when he entered judgment for the defendant on plaintiff's petition, and rendered judgment against the plaintiff and in favor of the defendant on its counterclaim in the sum of $ 296.17. Proper steps were taken for [225 Mo.App. 331] appeal by the plaintiff and the case is here for consideration under the following assignments of error as set out in plaintiff's brief:

"1. The court erred in refusing plaintiff's peremptory instruction offered at the close of all the testimony.

"2. The court erred in admitting in evidence what purported to be a carbon copy of a letter claimed to have been written by the respondent to the appellant on September 8, 1927, over the objection of the appellant.

"3. The court erred in rendering a judgment against the plaintiff on the defendant's counterclaim, when the undisputed testimony showed that the defendant never attempted to comply with the conditions of the warranty under which it bought and used the mill from the date of its installation until the date of trial, which was more than two years after the purchase."

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