Nichols-Shepard Co. v. Rhoadman

• Citation: 87 S.W. 62,112 Mo.App. 299
• Parties: NICHOLS-SHEPARD COMPANY, Respondent, v. RHOADMAN et al., Appellants
• Decision Date: 18 April 1905
• Court: Court of Appeal of Missouri (US)

87 S.W. 62

112 Mo.App. 299

NICHOLS-SHEPARD COMPANY, Respondent, v. RHOADMAN et al., Appellants

Court of Appeals of Missouri, St. Louis

April 18, 1905

Appeal from Louisiana Court of Common Pleas.--Hon. David H. Eby Judge.

AFFIRMED.

STATEMENT.

Plaintiff is an incorporated company. Its action is based on two promissory notes for $ 125 each, dated July 21, 1902, and due on the first days of October, 1902 and 1903. The notes were given for the purchase price of a Wind Straw Stacker purchased of the plaintiff July 14, 1902.

The defense is that the stacker was warranted to be of good material, well made and when rightly managed to carry off the straw and chaff from a threshing machine and stack them clear of the separator; and further that if any part of the stacker failed during the year after its purchase in consequence of defects in material, the plaintiff would repair it or furnish a duplicate of the defective part; that it was further warranted that if the company (plaintiff) failed to make the stacker perform after notice and friendly assistance, the appliance should be returned immediately to the place it was received and the company would return the money and notes it had received and rescind the contract; that the stacker failed in every respect to comply with the warranties, was not well made, of good material and would not carry off the straw and stack it clear of the separator, many parts of it were defective and plaintiff refused to repair the same or furnish duplicate parts; that the plaintiff undertook to remedy defects and remove the cause but could not make the stacker operate; that within five days after purchasing it defendants gave notice in writing to the seller through whom it was purchased and also mailed notices to the plaintiff at Battle Creek, Michigan, and Peoria, Illinois, advising that the machine had failed to comply with the warranties; that those notices were received by the plaintiff; that afterwards defendant offered to return the machine to the place where it was received and demanded the return of their notes, but plaintiff refused to allow defendant to return the stacker or to surrender to the defendants the notes. The allegations of the answer were put in issue by a reply.

The points in issue in this controversy cluster around the following written contract between the parties:

"PNEUMATIC STRAW STACKER ORDER.

"Dated at Rockport, Ill., July 14, 1902.

"To Nichols & Shepard Company, Battle Creek, Michigan.

"You will please ship for the undersigned, to or in care of W. F White, at New Canton, Ill., by the route you consider best and cheapest, on or about the 22nd day of July, 1902, one of your Nichols & Shepard Wind Straw Stackers, to be attached to a N. & S. Separator, No. L. F. 5946, with 32-inch cylinder 48-inch rear. I propose to run this separator and stacker with an engine made by a Nichols & Shepard 10-horse traction engine.

"In consideration whereof, I agree to receive said stacker upon its arrival, subject to all the conditions of the warranty and agreement printed below, and pay in cash the freight and charges thereon from the factory. I also agree to pay to your order, for said stacker, the sum of two hundred and thirty-five dollars in cash, or two hundred and fifty dollars in notes, as follows: Note due October 1, 1902, for $ 125.00 note due October 1, 1903, for $ 125.00. Said notes to be made payable to order of Nichols & Shepard Company, and each bearing interest at 6 per cent from date of delivery of said stacker until paid. Said notes to be secured by mortgage upon the stacker and separator to which it is attached, and further security as follows:

"WARRANTY.

"The above stacker is ordered, purchased and sold subject to the following express warranty and agreement, and none other viz:

"That the said stacker is well made, of good material, and when properly run and rightly managed will carry off the straw and chaff and stack them together, clear of the separator, with the help of one man to direct the chute and blast.

"It is expressly agreed, that upon starting this stacker, if the undersigned are not able to make it operate well, written notice by registered letter, stating wherein it fails to satisfy the warranty, is to be immediately given by the undersigned to Nichols & Shepard Company at Battle Creek, Michigan, and also to the dealer through whom purchased, and reasonable time allowed them to get it and remedy the defect, if any, unless it is of such a nature that they can advise by letter, and the undersigned hereby agree to render all necessary and friendly assistance, and that if they fail to make said stacker perform, through improper management or lack of proper appliances, they will pay all necessary expenses incurred.

"It is expressly agreed, that any failure or deficiency in said stacker shall be reported by the undersigned in writing, by registered letter, as above stated, within five days after starting said stacker; and longer use, or use without such written notice is conclusive evidence of satisfaction and fulfillment of warranty.

"It is expressly agreed, that if any part of said stacker fails during this year, in consequence of defect in material of said part, Nichols & Shepard Co. have the option to repair the same or to furnish a duplicate of said part free of charge, except freight, after representation of the defective piece, clearly showing a flaw in material, at the factory or to the dealer through whom said stacker was bought at any time within this year, but deficiencies in any piece not to condemn other parts.

"If stacker fails to fill warranty, and the company fail to make it perform after having notice and friendly assistance and co-operation as above provided, said stacker shall be returned immediately to the place where received, and the company may return the money and notes which have been received for the same and thereby rescind the contract, and be released from any further liability herein.

"Failure to pay for the stacker at the time and place of delivery and in the manner above provided; or failure to give any notice in writing as provided for herein; or failure to render friendly assistance and cooperation; or keeping the stacker after the five days allowed as above provided, or any abuse, misuse, unnecessary exposure or waste committed or suffered by the purchaser, shall be a waiver of the warranty and a full release of the warrantor, without in any way affecting the liability of the purchaser for the price of the stacker or notes given therefor.

"Notice--No general or special agent or local dealer is authorized to make any change in this warranty. Workmen or experts are not agents, and have no authority to bind the company by any contract or statement.

"This order is subject to the acceptance of the said company, and when so accepted is a binding contract which no person, other than an officer of the company, has authority to modify, or to waive any of its conditions. Neither shall the fact of any local or traveling agent or expert of this company rendering assistance of any nature at any time, operate as an extension or waiver of the conditions thereof.

"After the stacker mentioned herein is delivered to the purchaser, all subsequent contracts relating thereto or in any wise affecting this warranty, or the return of the stacker thereunder, must be in writing, and must, in order to bind the company, be signed by its president.

"Post office, Rockport, Ill.

"(Sign here.) J. H. RHOADMAN,

"(Sign here.) S. M. RHOADMAN.

"Each purchaser must fill out and sign one of the property Statements on the back of this order.

"This order is recommended by W. F. White.

"Any additions or alterations in the printed matter in this order will insure its rejection.

"(All orders for Pneumatic Stackers must be taken on these blanks.)"

"(Keep a copy of this Order and Warranty for Reference.)"

Plaintiff introduced the notes and rested.

The defendant put in evidence to prove breaches of the warranties and that the plaintiff's agent failed, after several attempts, to make the machine work. There was testimony, too that the defendants offered to return the machine to W. F. White, a local dealer, from whom they purchased. The appliance was received at New Canton, in the State of Illinois, about seven or eight miles from defendant's farm. It was set up and attached to a threshing machine the defendants owned; but, on account of lack of suitable attachments and pulleys, was not adjusted in good working order. One James, an agent of the plaintiff, promised to send the necessary attachments and with them Frank Drescher, a mechanic living at Barry, Ill., to fix the machine. The attachments and pulleys were received; but when Drescher reached defendants' farm he said the pulleys last sent did not fit and took those shipped with the stacker in the first place, attached the stacker to the threshing machine and ran it. This was two or three days after the stacker was received by the defendants. The next day after Drescher was at the farm, the defendants undertook to run the appliance in connection with their separator but were unable to make it work. They notified White, from whom they had bought it, and besides wrote three letters to plaintiff, mailed to Battle Creek, Michigan, and Peoria, Illinois, but not registered. White went to the defendant's farm the next day and attempted to make the machine operate but failed. It seems another representative of the plaintiff subsequently went to the farm with White and looked at the machine, said he could not fix it that evening as he did not have his working clothes, but would the next day. He never came back. The testimony for the defendants went to show the machine never...