Ajax Rubber Company, Inc., a Corp. v. White

• Decision Date: 02 July 1924
• Citation: 264 S.W. 466,216 Mo.App. 283
• Parties: AJAX RUBBER COMPANY, INC., A Corporation, Respondent, v. D. H. WHITE and CHARLES DORROH, a Co-Partnership, Doing Business Under the Style Name of THE FARMERS SUPPLY COMPANY, Appellants
• Court: Missouri Court of Appeals

264 S.W. 466

216 Mo.App. 283

AJAX RUBBER COMPANY, INC., A Corporation, Respondent, v. D. H. WHITE and CHARLES DORROH, a Co-Partnership, Doing Business Under the Style Name of THE FARMERS SUPPLY COMPANY, Appellants

Court of Appeals of Missouri, Springfield

July 2, 1924

Appeal from the Circuit Court of Scott County.--Hon. Frank Kelly Judge.

AFFIRMED.

Judgment affirmed.

Ward Reeves & Oliver for appellants.

(1) This is not a proper case for a reference and the court erred in denying the defendants their right to a jury trial and in making a compulsory reference. Section 28, Article 2 Constitution of Missouri; Reed v. Young, 248 Mo. 616; Foster v. Railroad, 143 Mo.App. 551; Roth Tool Co. v. Spring Co., 146 Mo.App. 32. (2) The referee in his report found that the goods were sold under a warranty to be free from defects in workmanship or material, and that plaintiff agreed to make adjustments on tires failing to give proper service, yet refused to allow defendants anything on tires which testimony of both parties showed were defective. This was error. (3) A person manufacturing a commodity for a specific purpose and use, is held in law to warrant that the commodity is reasonably fit for the purpose for which it is sold, when such use is known to him. Boulware v. Mfg. Co., 152 Mo.App. 575; Fairbanks Co. v. Baskett, 98 Mo.App. 70.

Harry C. Blanton for respondent.

(1) (a) Suit was properly referred under the law and pleadings in the case; it was proper to refer the same as the petition involved a long account and an accounting between the parties, and the matter is determined by the pleadings rather than the evidence offered at the hearing. Smith v. Haley, 41 Mo.App. 613; Briscoe v. Kinealy, 8 Mo.App. 78; Craig v. McNichols Co., 187 S.W. 797; Johnston v. Star Bucket Co., 202 S.W. 1143, 274 Mo. 414; McCormick v. St. Louis, 65 S.W. 1038. (b) Appellant's answer and counterclaim covered seventeen separate items and was properly referred for an action for breach of warranty is ex contractu and not ex delicto and is referable. 1 C. J. 1021, sec. 143; Hess v. Appleton Co., 164 Mo.App. 153, 148 S.W. 179; Chappell v. Boram, 159 Mo.App. 442, 141 S.W. 19. (2) The report of the referee and the judgment of the trial court should be affirmed. (a) In a compulsory reference, where referee's report is supported by substantial evidence, it cannot be set aside. Dunlap v. Elks Club, 25 Mo.App. 180; Feeney v. Chapman, 89 Mo.App. 371; Kline Cloak Co. v. Morris, 240 S.W. 96, 100; Higdon v. Ming, 236 S.W. 384; State ex rel. v. Wilson, 232 S.W. 140, 288 Mo. 315; Ogle v. Sutherland, 207 S.W. l. c. 849. (b) Exceptions to referee's report must point out specific rulings assigned as error, and mere generalities are not sufficient. Smith v. Haley, 41 Mo.App. 614; Dallas v. Brown, 60 Mo.App. 496; Singer Co. v. Givens, 35 Mo.App. 610; Cahill v. McCormick, 74 Mo.App. 613; Van Hoose v. Hines, 180 S.W. 30; Huggins v. Hill, 245 S.W. 1108. Where a contract provides that one of the parties is to be the judge of whether or not the article sold complies with the contract, both parties are bound by the decision of the party unless that decision is based upon fraud or dishonesty which must be specially pleaded. Beck Co. v. Holbeck, 82 S.W. 1128, 109 Mo.App. 179; Henley Co. v. Grannis, 157 S.W. 817, 171 Mo.App. 392; Chapman v. Railway, 21 S.W. 858, 114 Mo. 542; Williams v. Ry., 54 S.W. 689, 153 Mo. 487; Gratiot v. Wilkinson, 68 S.W. 585, 94 Mo.App. 528; 24 R. C. L., page 433, sec. 730; 35 Cyc. 227.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.--

The plaintiff recovered a judgment in the trial court in a suit on an open account, from which judgment the defendants appealed. The petition is in the usual form, and attached thereto is a copy of a statement of the account and the invoices of the goods sold. The answer was a general denial and a counterclaim asking damages on account of the breach of warranty under which the goods were sold. The statement of account attached to plaintiff's petition contains some 25 or 26 items, showing a balance due plaintiff according to said statement of $ 174.64. Something like 11 or 12 invoices, showing the items and charges, were attached to the statement which was made a part of the petition; said statement and invoices covering ten pages of the printed abstract before us.

The trial court appointed a referee, over the protest of the defendants, and one of the errors assigned on this appeal is that the case is one that should be tried by a jury and was not referable. We think the cases cited by respondent clearly disposes of this point. The general denial placed the correctness of plaintiff's statement in issue and each of the invoices and items contained therein. In addition to this the counterclaims set up--some ten or twelve--alleged breaches of the contract. The following cases sustain the action of the trial court in making the compulsory reference and hold that the question of whether a compulsory reference is to be made is to be determined by the pleadings. [Craig v. McNichols Furn. Co., 187 S.W. 793, l. c. 797; Smith v. Haley, 41 Mo.App. 611; Briscoe v. Kinealy, 8 Mo.App. 76; Johnston et al. v. Star Bucket Pump Co., 202 S.W. 1143, the latter case holding that the finding of the Referee, when approved by the trial court, in a law case stands as the verdict of the jury and will not be disturbed if there is substantial evidence to support it.] [See, also, Kline Cloak & Suit Co. v. Morris, et al., 240 S.W. 96.]

The counterclaims in this case were based on a warranty made in a written contract by the plaintiff, containing the following provision:

"We do not guarantee pneumatic automobile tires for any specific mileage, but every pneumatic automobile tire bearing our name and serial number is warranted by us to be free from defects in workmanship or material."

"Tires claiming to be defective will be received only when all transportation charges are prepaid, and when accompanied by this company's claim form duly filled out and signed by the owner. If, upon an examination it is our judgment that the direct cause of the failure of the tire to render satisfactory service is attributable to faulty material or workmanship, we will, at our option, either repair the tire or replace it for a charge which will compensate for the service rendered by the returned tire, based upon its general appearance and condition."

"Pneumatic automobile tires in which a substitute for air has been used tires used when not inflated to the pressure recommended by us, used under loads in excess of those recommended by us used on wheels out of alignment, abused or misused, used on rims other than those bearing these stamps, or which have been injured through...