Fairbanks, Morse & Co. v. Baskett
| Citation | 71 S.W. 1113,98 Mo.App. 53 |
| Parties | FAIRBANKS, MORSE & CO., Appellant, v. CECIL M. BASKETT, Respondent |
| Decision Date | 03 February 1903 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Audrain Circuit Court.--Hon. Elliott M. Hughes, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
C. A Barnes for appellant.
(1) The alleged counterclaim of defendant in his answer and in his amended answer does not state a cause of action, and is not sufficiently definite to advise plaintiff of the nature of his claim and bar another action. R. S. 1899, sec. 3852; Pattison v. Lutz, 1 Mo.App. 133; Nutter v Houston, 32 Mo.App. 451; Rosenburg v. Boyd, 14 Mo.App. 429. (2) Plaintiff's refused instruction No. 18 should have been given, because the court of its own motion gave the instructions as prayed for regarding the first and third counts of plaintiff's petition, and because regarding the second count, defendant never demanded of plaintiff the parts ordered to replace defective parts of said engine, but ordered them as repairs, and defendant was not entitled to recover upon its counterclaim because it did not state a cause of action, save the sum of five dollars as admitted due plaintiff, because it was necessary under the contract of sale to make demand of plaintiff to replace defective parts. Kirk & Co., v. Seely, 63 Mo.App 262, and cases therein cited; Kingman v. Schulenberger, 64 Mo.App. 548; Nichols v. Larkin, 79 Mo. 265. (3) The court committed error in overruling plaintiff's motion to require defendant to make his amended answer definite and certain, because defendant having asked leave of the court to file an amended answer herein, thereby made himself amenable to the rules of practice of said court in relation to his pleading. Swineford v. Pomeroy, 16 Wis. 553; Burnham v. Turner, 14 Wis. 622; Briggs v. Railroad, 111 Mo. 168.
John T. Baker and W. W. Fry for respondent.
(1) The allegations in defendant's answer and counterclaim are sufficient. The well-known rule in this State is that a statement of a cause of action in an action before a justice of the peace is always held sufficient when it identifies the ground of the action with such certainty as to apprise the defendant of what the plaintiff claims of him. Lee v. Tel. Co. 51 Mo.App. 375; Butts v. Phelps, 90 Mo. 670; Glenn v. Weary, 66 Mo.App. 75; Force v. Squire, 133 Mo. 306. (2) Plaintiff's instructions Nos. 11 and 13 were properly refused. There was no evidence to support said instructions. They do not correctly declare the law. By the words of the contract the engine was warranted "to be made of good material and in a workmalike manner." The engine was sold for a particular purpose, known to plaintiff, and to do certain work and thereby there was an implied warranty that it was reasonably fit for the use intended. If not so fit the vendee had the right to return it, thereby rescinding the sale or keep the same and defeat recovery of the purchase price to the extent of the difference between the value if it had been as contracted for and the real value in its inferior condition. If it is worthless for any other purpose there is a total failure of the consideration. St. Louis Brewing Co. v. McEnroe, 80 Mo.App. 429; Schoenberg v. Laker, 88 Mo.App. 387; June & Co. v. Falkinberg, 89 Mo.App. 571. (3) "In ordinary cases of breach of warranty, both contracts remain binding to their full extent, and when recoupment is allowed, damage for breach on one side and set off by like damage on the other side, the crossclaims arising out of the same transaction compensate one another and the balance only is recovered. Brown v. Weldon, 27 Mo.App. 252; St. Louis Brewing Co. v. McEnroe, 80 Mo.App. 429; Schoenberg v. Laker, 88 Mo.App. 387.
On October 3, 1900, defendant purchased a gasoline engine of the plaintiff (a corporation) to be used in running machinery in his printing office in the city of Mexico, Missouri. The contract of sale was in writing and contained an express warranty that the article should be a gasoline engine of two and one-half horsepower; also a warranty that the engine was made of good material and in a workmanlike manner. If any part proved defective in material or workmanship within one year from the date of shipment, there was a stipulation binding the plaintiff to replace it free of cost. The memorandum recited that it was the only agreement between the parties and that there were no verbal understandings. In addition to the terms stated there was one that the title to the engine should remain in plaintiff until paid for in full and that plaintiff might, in case of default, seize and sell it, by publishing notices, and apply the proceeds to pay the balance due on the contract.
Baskett made a cash payment of fifty dollars and after he had received the engine and used it about two months, executed two notes for the balance of the price, one for $ 70, due January 2, 1901; the other for $ 71.50, due March 1, 1901, both in the ordinary form of promissory notes. He paid twenty-five dollars on the first note at a subsequent date and published an advertisement for plaintiff in his newspaper for which he was entitled to a credit of five dollars. Defendant ordered from the plaintiff new parts to replace some which either gave way from wear or were originally defective, and plaintiff also sent a man to fix the engine at defendant's request. A portion of the expense of these matters was paid by the defendant in cash, but plaintiff claims a balance due on account for the labor and repairs.
This action was brought on said notes and on that account, there being three counts in the petition, one for each note and one on the account.
The answer of the defendant admits the execution of the notes and receipt of the merchandise charged in the account and pleads that the notes were executed and delivered without a consideration; further, that they were given under the aforesaid contract for the purchase price of the engine, and that the plaintiff in said contract agreed to furnish a certain kind of engine and comply with certain warranties in said contract contained and also with other warranties; that the engine furnished was not the kind agreed nor did it comply with the warranties made by the plaintiff, of all which facts plaintiff had been notified by the defendant on various occasions and the return of the engine tendered, but plaintiff refused to accept it. The answer further states that the articles of replacement and repair were furnished under the contract, and defendant was not liable for them because they were to be furnished by the plaintiff free of cost. Besides said defenses, the answer pleaded a counterclaim in which the defendant asked to recover what he had paid on the engine, to-wit, $ 75, and what he had expended for repairs, to-wit, $ 20; also the five dollars for advertising.
The replication, after stating there was a good consideration for the notes and denying the allegations of the answer, pleads that defendant waived all claim for damages on account of the defects in the engine by accepting it, making payments on the price, executing the notes in suit for the balance of the purchase price, using the engine for more than a year, making numerous promises to pay the notes, and ordering repairs without demanding that they be furnished by the plaintiff to supply defective parts, and by mortgaging the engine. These acts, the replication charges estopped the defendant from asserting a failure of consideration or damages for breach of warranty. The replication further charges that any inefficiency in the engine was due to careless handling by the defendant.
There was testimony that the engine was found to be defective as soon as it was set up in defendant's printing office; also that it was not worth over twenty-five dollars and was useless in a printing establishment. According to defendant's witnesses, there were blisters on the paint indicating that it was a secondhand engine; its movements were erratic; its explosions irregular; the flywheels on it were cracked so that both of them afterwards broke; it "knocked" loudly when running so as to be heard a block or more away; the igniter (that is the appliance to send a spark through the gasoline vapor and thereby produce the explosions which caused the engine to operate) was secondhand and inefficient; the engine often stopped during the day, could not be depended upon, its irregular movements injured the other machinery in the office, broke up the type, made the newspapers come out of the presses uneven and smudged, made the folder tear the papers as they went through and altogether caused the printing establishment to turn out bad work. The defendant notified plaintiff of the defects, and his agent called on the plaintiff and asked that the engine be made to run well. There was also testimony that defendant offered to return the engine, but the circuit court held the offer was made too late.
On the other hand, there was evidence to show the engine was new and that the few blisters on it were produced by its having been tested in the factory before it was shipped; that the motion of all gasoline engines is somewhat irregular, but that efficient service by them does not require a regular motion, that whatever imperfection there was in the work of this particular engine was due to its being set on a foundation not sufficiently staunch and solid (the defendant was bound by the agreement to prepare the foundation) and to its being handled improperly and badly cared for.
An extensive correspondence ranging over nearly a year took place between the parties in regard to the payment of the balance due on the notes. In this correspondence the defendant...
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