Acme Harvesting Machine Co. v. Gasperson
| Citation | 153 S.W. 1069,168 Mo.App. 558 |
| Parties | ACME HARVESTING MACHINE CO., Appellant v. J. M. GASPERSON and P. E. GASPERSON, Respondents |
| Decision Date | 03 February 1913 |
| Court | Court of Appeal of Missouri (US) |
Rehearing Denied 168 Mo.App. 558 at 576.
Appeal from Jasper Circuit Court, Division Number Two.--Hon. David E. Blair, Judge.
AFFIRMED.
Judgment affirmed.
R. A Mooneyham and Hugh Dabbs for appellant.
1. By terms of the written contract and warranty between plaintiff and defendants, it is shown that defendants purchased the machine in controversy with a special warranty, containing conditions precedent before any liability should attach to plaintiff on account thereof. Defendants failed to comply with the conditions of the contract and warranty, and kept and used the machine after the time therein provided. This failure, by the terms of the contract, served as an agreement on defendants' part that the machine fulfilled the warranty. Bank v. Barts, 130 Mo.App. 635; Smoke Co. v. St. Louis, 205 Mo. 239; Nichols-Shepard Co v. Rhoadman, 112 Mo.App. 299; Kingman Co. v. Schulenberger, 64 Mo.App. 556; Esterly v. Campbell, 44 Mo.App. 622; Boyer v. Neel, 50 Mo.App. 26; Draper v. Farris, 56 Mo.App. 418; Nichols v. Larkin, 79 Mo. 264. 2. There is no evidence that defendants complied with all the terms of the contract and warranty, and defendants do not claim a waiver of these terms by plaintiff. The burden of proof to show full compliance with these conditions, or a waiver thereof by the plaintiff, is on the defendants. Bank v. Barts, 130 Mo.App. 638; Nicols-Shepard Co. v. Rhoadman, 112 Mo.App. 308; Nicols v. Larkin, 79 Mo. 264. 3. The sale became complete on the failure of defendants to comply with the terms of the contract and warranty, and plaintiff's right of action accrued on the failure of defendants to give notes at the time specified in the contract. This is not altered by the fact that the notes were subsequently executed and delivered to plaintiff, and the measure of damages is the face of the notes. Globe Co. v. Doud, 47 Mo.App. 451; Autman & Co. v. Daggs, 50 Mo.App. 289. 4. The measure of damages under this supplemental agreement (if it has any value) is the reasonable cost of remedying the defects specified, or the difference between the market value of the machine as warranted and its value as it was. Kerr v. Emerson, 64 Mo.App. 160; Machine Co. v. Heath, 65 Mo.App. 461. 5. An instruction purporting to cover the entire case and authorizing a recovery on the facts hypothecated, must not exclude from the consideration of the jury any of the evidence offered by either plaintiff or defendants. Boyer v. Neel, 50 Mo.App. 26; Wood Mach. Co. v. Babbst, 56 Mo.App. 431; Kingsland v. Board Bros., 60 Mo.App. 662; Tube Works v. Ice Mach. Co., 201 Mo. 61. 6. After pleading the supplemental contract, and the introduction of evidence that the machine had only a few defects which could be remedied at small cost, it was out of the question to submit to the jury the proposition that the machine was worthless for any purpose. Nicols-Shepard Co. v. Rhoadman, 112 Mo.App. 309. 7. The acceptance was an absolute bar to the defence set up in defendants' answer, and the trial court erred in refusing to instruct the jury at the request of plaintiff to consider this in arriving at their verdict, and in not including it in its instruction given for defendants, and in failing to direct a verdict for the plaintiff for the full amount sued for. Wood Mach. Co. v. Babbst, 56 Mo.App. 431; Importing Co. v. Carl, 116 Mo.App. 581.
Henry L. Bright for respondent.
1. Whenever a promissory note shall be the foundation of an action, the proper party may prove as a defense the want or failure of the consideration, in whole or in part. R. S. 1909, sec. 1974. 2. That the plea of failure of consideration of the purchase price for personal property sold on a warranty is available as a defense, in a suit to recover such price, is the well settled law of this State. Williams v. Baker, 100 Mo.App. 288; Herman v. Merc. Co., 106 Mo.App. 438; Brown v. Weldon, 99 Mo. 564; Maugh v. Hornbeck, 98 Mo.App. 389; Miles v. Withers, 76 Mo.App. 87; Stewart v. Miles, 80 Mo.App. 24; Steel & Wire Co. v. Symons, 110 Mo.App. 47; Implement Co. v. Parmer, 128 Mo.App. 300; Fairbanks v. Baskett, 98 Mo.App. 58; Schoenberg v. Locker, 88 Mo.App. 387; New Birdsell Co. v. Reys, 99 Mo.App. 458; Bailes v. Heer, 91 Mo.App. 428; Crenshaw v. Looker, 185 Mo. 375. 3. The defenses, breach of warranty and failure of consideration, in separate counts, are not inconsistent. Implement Co. v. Leonard, 40 Mo.App. 477; Crenshaw v. Looker, 185 Mo. 375; Brown v. Weldon, 99 Mo. 564; Murphy v. Gay, 37 Mo. 535; Compton v. Parsons, 76 Mo. 535; Bank v. Burts, 130 Mo.App. 635. 4. Where goods are not of the kind or quality contracted for, or are unfit for the purpose for which they were sold, it is not necessary to return or offer to return the goods, in order to defend against an action for the purchase price on the ground of failure of consideration. Murphy v. Gay, 37 Mo. 537; Compton v. Parsons, 76 Mo. 457; Brown v. Weldon, 99 Mo. 568, 494; Sinnamon v. Moore, 142 S.W. (Mo. App.). 5. Plaintiff in the trial court raised no objection to the answer, and any objection thereto, save that it fails to state a cause of action, cannot be raised for the first time in the appellate court. R. S. 1909, sec. 1804; Catron v. Lafayette Co., 106 Mo. 659; R. S. 1909, secs. 1804, 1816; Kinney v. Miller, 25 Mo. 576; St. Louis v. Wetzel, 130 Mo. 600; Harper v. Fidler, 105 Mo.App. 680; R. S. 1909, secs. 1815, 1816; McGlothin v. Hemery, 44 Mo. 350; Haynes v. Trenton, 123 Mo. 326; Sheehan v. Sims, 36 Mo.App. 224; Williams v. Railroad, 112 Mo. 463; Coombs v. Block, 130 Mo. 668; Edwards v. Railroad, 74 Mo. 117; Gilson v. Railway Co., 76 Mo. 282; Lingenfelter v. Insurance Co., 19 Mo.App. 252.
--This is a suit on two promissory notes for $ 70 each, given by the defendants in payment of the purchase price of a binder purchased by them of plaintiff. The plaintiff failed to recover and brings the case here by appeal
The petition is in the usual form and the answer admits the execution of the notes sued on. The answer is in two counts and as a defense the first count alleges that the notes were given in payment of a certain Acme Self-binding Harvester; that the harvester was bought for the purpose of cutting and binding grain; that defendants purchased the harvester upon a written and printed warranty that it would do good and efficient work for which it was intended when properly operated; that defendants properly operated said harvester, but that same would not cut and bind grain and wholly failed to work; that defendants at once notified plaintiff's agents and plaintiff of the defective condition of the harvester; that plaintiff's agents made divers efforts to remedy the defects without avail; that defendants at once offered to return said harvester; that afterward, on September 2, 1910, plaintiff agreed in writing to put said harvester in order for the next season; that defendants relied upon said agreement and were induced thereby to retain said harvester until the next season; and were thereby induced to execute and deliver the notes sued on; that defendants gave due notice to the plaintiff before the cutting season of 1911 and requested it to put said harvester in good order as agreed, but that plaintiff failed and refused to do anything whatever during that season to put it in order; that the harvester at that season again failed to cut and bind grain and defendants were compelled to abandon the same; that defendants at once offered to return said harvester to the plaintiff and that they are still ready and willing to return same, but that plaintiff refused and still refuses to receive it; that at all the times mentioned the harvester was wholly worthless for the purpose for which it was intended and for which it was purchased and was wholly worthless for any purpose whatever and still so remains; that the consideration of said notes has wholly failed and that plaintiff is not entitled to recover the same or any part thereof.
The second count is denominated a counterclaim and sets out in the same manner substantially all the allegations of the first count, inclusive of the allegation that the harvester was intended to be used and was bought for the purpose of cutting and binding grain, and that it was purchased subject to a written and printed warranty that the same would do good and efficient work for which it was intended when properly operated. It again alleges that the harvester wholly failed to comply with plaintiff's warranty to do good and efficient work for which it was intended and for which it was purchased and was wholly worthless for any purpose whatever. The only material difference between the first and the second counts is that the second count sets up in detail that defendants were damaged by the failure of the harvester to work by reason of loss of time, in being compelled to hire another binder, for extra work in helping or in trying to repair the binder, and for loss of grain by reason of its doing defective work, all in the sum of $ 300, for which they ask judgment.
Plaintiff made no objection to this answer, except to object to the introduction of any evidence on the ground that the same did not allege facts sufficient to constitute a defense, the execution of the notes being admitted. This objection was overruled and at the close of all the evidence the defendants dismissed as to the second count, the court refused a peremptory instruction to find for plaintiff and the case was submitted to the jury on the first count only.
The binder in question was purchased by defendant in May, 1910 to be delivered in June...
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