Advance Rumley Thresher Company v. Briggs Hardware Company
| Citation | 206 S.W. 587,202 Mo.App. 603 |
| Parties | ADVANCE RUMLEY THRESHER COMPANY, Respondent, v. BRIGGS HARDWARE COMPANY, Appellant |
| Decision Date | 25 November 1918 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Newton County Circuit Court.--Hon. Chas. L. Henson Judge.
AFFIRMED.
Judgment affirmed.
O. L Cravens for appellant.
Hubbert & Hubbert and Ellis, Cook & Dietrich for respondent.
Sturgis, P. J., not sitting.
This is an action on account to recover a balance due for cream separators sold by plaintiff's predecessor to defendant. On trial before the court and a jury, defendant prevailed, but the trial court sustained a motion for a new trial, from which defendant appealed.
The Rumley Products Company was the manufacturer of the cream separator at the time of the sale to defendant. Subsequently the manufacturer transferred its business and accounts to plaintiff; and it is agreed that plaintiff is responsible as would be the vendor. The separators were sold under a written express warranty contained in the written order, the pertinent terms of which order are as follows:
The account sued on was originally $ 1094.35, on which had been paid $ 506.02, leaving balance of $ 588.33. The defense was that the separators were wholly unfit for the purpose intended and that there was consequently a failure of consideration. The defendant had, in the present and a prior order, ordered fifty of these separators from the vendor, and defendant's answer sets up that all these were wholly worthless and unfit for the purpose intended, while the evidence tended to establish that at least enough were shown to be worthless to equal or overcome the balance due on the account. Defendant's evidence was directed to establishing the proposition that of all the separators it had handled on both orders enough of them were wholly worthless to equal or exceed the balance due on account. The controversy hinges about the question of warranty; defendant contending that in addition to the written express conditional warranty that there was a separate implied warranty of fitness. There was much evidence on both sides touching the fitness, quality and work of the separators; defendant's evidence tending to show that all the separators bought did not properly separate the cream from the milk, and were for all practical purposes useless; while on the other hand the evidence adduced by plaintiff in this respect tended to show that the separators were of good quality and rendered good service. The court did not specify the ground or grounds upon which it granted a new trial, therefore if its ruling in that respect can be supported or upheld on any ground properly raised in the motion for a new trial its action therein will be upheld. [Kelly et al. v. City of Higginsville, 185 Mo.App. 55, 171 S.W. 966; Peper v. Peper, 241 Mo. 260, 145 S.W. 408; Haven v. Railroad, 155 Mo. 216, 55 S.W. 1035; Candee v. Railroad, 130 Mo. 142, 31 S.W. 1029; Wears v. Weisberg, 163 Mo.App. 580, 146 S.W. 818.] There was no dispute about the account, and the defendant assumed the burden and offered its evidence first. On behalf of defendant the court instructed the jury in substance and to the effect that if they found that the separators were not made of good material or would not do good work in separating cream from milk when properly set up, and were not usable or worth anything for the purpose intended, from causes other than defective parts (Italics are ours) that they would return a verdict for the defendant, provided that the number of separators found to be worthless exceeded or equaled the balance sued for. In a separate instruction number two the court on behalf of defendant instructed that the seller of the cream separators in question "
The plaintiff requested instructions to the effect that, though the jury found that the separators were defective and did not fill the conditions of the written express warranty, yet the contract of purchase and warranty accorded the seller the right to replace any parts that might prove defective and that the seller was entitled to such reasonable notice as would apprise it of any defect that may have appeared when the defendant received the separators or afterwards; and that unless they found that reasonable notice was given that the jury could not make any allowances to defendant against plaintiff for any separator where notice had not been given. The court over plaintiff's objections and exceptions modified this instruction by adding "unless you find and believe from the greater weight of the evidence that the machines were not suitable for separating cream from milk as set forth in instruction No. 2," which is substantially set out, supra. Another instruction requested by plaintiff and applicable to all the machines was asked, and given, but modified as above.
The proposition that an express conditional warranty excludes an implied warranty on the same subject is well settled in this State. [Bank v. Wood, 189 Mo.App. 62, 173 S.W. 1093; Gaar-Scott & Company v. Nelson, 166 Mo.App. 51, 148 S.W. 417; Acme Harvesting Machine Company v....
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