Advance Thresher Co. v. Speak
| Decision Date | 25 November 1912 |
| Parties | ADVANCE THRESHER COMPANY, Appellant, v. ALBERT SPEAK et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Fugate & Son and Campbell & Ellison for appellant.
(1) Before a purchaser can defeat the entire claim of the purchase price of a chattel he must not only allege and prove that the machine did not answer the demands of the warranty but he must also show that he returned or offered to return the machine, or that it was entirely worthless for any purpose. McCormick v. Brady, 67 Mo.App. 292. (2) The terms of the warranty were in writing and this writing fixed the rights of the parties to this action. Company v Holbeck, 109 Mo.App. 179. (3) There is no evidence that the signatures of the respondents were procured by fraud. And it was error to give respondents' instruction No. 2 submitting that issue. Shanley v. Company, 63 Mo.App. 123. (4) Instruction No. 2 is erroneous in that it gave the jury a roving commission "to allow to the defendants such damages as you may believe and find they have sustained by reason of the failure of said machinery to comply with the terms of said warranty." Matney v. Company, 19 Mo.App. 107; Camp v. Company, 94 Mo.App. 272; Hawes v. Company, 103 Mo. 60. (5) There is no evidence that tends to show the profit that respondents could or would have made out of their alleged contract for plowing, nor is there any evidence tending to show the value of their services during the period of time they would probably have been engaged. Where there is no evidence tending to show the amount of damage, it is error for the court to submit the cause to the jury. Houch v. Company, 116 Mo.App. 559; Willis v. Company, 111 Mo.App. 580.
Smoot & Cooley and J. E. Rieger for respondents.
(1) There being no motion for new trial nor in arrest of judgment, nor exceptions to the overruling of same, preserved in the alleged bill of exceptions, there is nothing before this court for review but the record proper. State v. Finley, 193 Mo. 202; Roden v. Helm, 192 Mo. 71; Skaggs v. Insurance Co., 94 Mo.App. 88. (2) In an action of replevin for recovery of property under a chattel mortgage, all controversies growing out of the transaction which gave rise to the mortgage may be settled in one action. Defendant may by answer tender equitable issues and recover damages for breach of warranty or, of the contract, and may have affirmative relief and judgment for an amount above what is due plaintiff. McCormick Harvesting Co. v. Hill, 104 Mo.App. 544; Ritchie v. Hayward, 71 Mo. 560; Bowman & Co. v. Lickey, 86 Mo.App. 47.
--Plaintiff's action is replevin whereby it seeks to recover a lot of personal property. Defendants had judgment in the circuit court. Plaintiff appealed. There is no bill of exceptions and we have only to ascertain whether the record proper discloses any legal cause for our interference.
The petition, answer, reply, verdict and judgment, composing the record proper, are set out in the transcript and we will confine our investigation to these. The petition is in replevin and plaintiff seeks to recover from defendants' possession thirteen head of live stock, a wagon, harness, and one "Advance 26 horse power steam engine with hose," with all appliances for plowing and harrowing, all of the value of $ 1040. Damages for the detention of the property, in the sum of $ 500, is also claimed.
The answer is a general denial and a counterclaim. In setting forth the ground of the counterclaim, defendants have stated the cause of the controversy. It appears that defendants bought, at the price of $ 2000, the steam engine of plaintiff largely on credit, executing their notes for the purchase money and giving a chattel mortgage on the engine and the other property, to secure their payment. That when they came to work it, they found it would not do practical plowing, and was not worth to exceed $ 700. It is alleged in the answer that defendants had contracted for breaking sod for others, whereby they could have made a profit of $ 800, and that they could not do the work on account of the engine not working. It is also alleged that of the personal property mortgaged to plaintiff the sheriff took by the replevin writ the engine, and two of the horses valued at $ 200, and turned them over to plaintiff. Payments on the notes aggregating $ 858 are alleged. Finally it is alleged that defendants "are otherwise damaged in the sum of $ 500." The prayer of the answer is that the court order a return of the property; that defendants' damages be ascertained, and that their notes be ordered surrendered.
The verdict was as follows: "We, the jury, find for the defendants and assess the amount due them at $ 735 dollars. " The judgment following the verdict as set out in the record was: "It is therefore considered and adjudged by the court that the defendants have and recover of and from the plaintiff the said sum of seven hundred thirty-five dollars ($ 735) so found and assessed by the jury to be due them, together with costs in this behalf laid out and expended, taxed at dollars ($ ) and that they have execution therefor."
As we have stated, we have no guide as to what transpired in the trial court except what is shown by the record proper, which includes the verdict and judgment. [Bateson v. Clark, 37 Mo. 31; Lilly v. Menke, 126 Mo. 190, 212, 28 S.W. 643.]
As we understand defendants' position, it is not claimed that the verdict is regular or proper, but that plaintiff having failed to complain by filing a motion in arrest, it cannot now be noticed on appeal. The rule that all matters constituting the record proper may be examined by an appellate court notwithstanding there is no bill of exceptions including a motion in arrest, has been so far modified as to require a motion in arrest for all immaterial errors not of a serious or fatal character. But unless the errors complained of are formal, minor or immaterial, they will be examined on appeal, though there is neither a motion nor bill of exceptions. [Sweet v Maupin, 65 Mo. 65; McIntire v. McIntire, 80 Mo. 470, 473; State ex rel. v. Scott, 104 Mo. 26, 31, 15 S.W. 987; Land Co. v. Bretz, 125 Mo. 418, 423, 28 S.W. 656; State ex rel. v. Carroll, 101 Mo.App. 110, 74 S.W. 468; Nichols v. Lead & Zinc Co., 85...
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