Alvin Fruit & Truck Ass'n v. Hartman

• Court: Missouri Court of Appeals
• Writing for the Court: Goode
• Citation: Alvin Fruit & Truck Ass'n v. Hartman, 123 S.W. 957, 146 Mo.App. 155 (Mo. App. 1909)
• Decision Date: 14 December 1909
• Parties: ALVIN FRUIT & TRUCK ASS'N v. HARTMAN.

123 S.W. 957

ALVIN FRUIT & TRUCK ASS'N v. HARTMAN.

St. Louis Court of Appeals. Missouri.

December 14, 1909.

1. FRAUD (§ 3) — MISREPRESENTATIONS — WHAT CONSTITUTES.

In order for a buyer to recover damages for misrepresentations, he must show reliance on the representations, that they were adapted to deceive a buyer of ordinary prudence, and an intention to deceive.

2. SALES (§ 261) — WARRANTY — WHAT CONSTITUTES.

Where a seller of strawberries affirmed that they were a certain variety, and the buyer bought relying on the affirmation, there was an express warranty that they were such variety, though the word "warranty" was not used.

3. SALES (§ 267) — IMPLIED WARRANTY.

An express warranty will not exclude an implied one about other matters, but will as to matters the former embraces.

4. SALES (§ 284) — WARRANTY — RIGHT OF ACTION FOR BREACH.

Where a seller of strawberries warranted them to be "fancy Klondike," sound, merchantable, salable and in condition to arrive at destination in salable condition, for the buyer to recover for breach of warranty, it must prove that the berries were not "Klondike," or, if they were, that they were not in proper condition.

5. SALES (§ 435) — WARRANTY — ACTION FOR DAMAGES.

Where, in an action for the price of strawberries, the answer alleged that plaintiff warranted them to be fancy "Klondike," sound, and in condition to arrive at destination in a salable condition, it did not amount to a declaration on an implied warranty of their fitness for the market at their destination, though it alleged that plaintiff knew the berries were being bought for that market.

6. SALES (§ 284) — WARRANTY.

Where a seller of berries warranted them to be of a certain variety, there was a breach of warranty if the berries were not of that variety, though they reasonably answered the description of such berries.

7. SALES (§ 446) — BREACH OF WARRANTY — INSTRUCTIONS.

Where defendant claimed damages for breach of warranty on a sale of strawberries, and the evidence showed that defendant's agent was about plaintiff's place of business while the berries were being packed and loaded on cars, and saw and knew their quality, but it did not appear that defendant, or any one representing him, made an inspection, an instruction, referring to the car as inspected, packed, and loaded by defendant, was erroneous.

8. SALES (§ 437) — BREACH OF WARRANTY — ISSUES AND PROOF.

Where defendant, in an action for the price of berries, did not claim in his answer any recovery for damages suffered by the berries while in transit, he could have no recovery on such ground.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by the Alvin Fruit & Truck Association against William Hartman. From a

judgment for plaintiff, defendant appeals. Reversed.

The following instructions were given to the jury; the italics indicating the court's modifications:

For plaintiff:

"(1) The court instructs the jury that if you find and believe from the evidence in this case that, on or about the 27th day of March, A. D. 1907, at the town of Alvin, in the state of Texas, the plaintiff, Alvin Fruit & Truck Association, sold and delivered to the defendant, William Hartman, at said Alvin, Tex., a certain car load of strawberries, being referred to in the evidence as car C-47, containing 521 crates of strawberries, at and for the price and sum of $1,302.50, to be paid in cash upon the delivery of said berries; and if you further find that said strawberries at the time they were delivered to defendant at said Alvin, Tex., if you find they were so delivered, were then and there at that time in good and merchantable and marketable condition; and if you further find that the price charged for said strawberries at the time same were sold and delivered to defendant, if they were so sold and delivered, was reasonable; and if, having found the aforesaid statements to be true as of fact, you further find that plaintiff demanded payment of said $1,302.50 from defendant on or about March 28, 1907, and that defendant did refuse at that time, and has to this day refused and neglected, to pay the same or any part thereof — you will find your verdict against defendant and in favor of plaintiff on plaintiff's petition for the sum of $1,302.50, together with interest thereon at the rate of 6 per cent. per annum since March 28, 1907, unless you find the facts as stated in instruction No. 8.

"(2) The court instructs the jury that if you find and believe from the evidence in this case that the plaintiff, on or about March 27, 1907, sold and delivered to the defendant at Alvin, Tex., the car of strawberries mentioned in plaintiff's petition and in the evidence as car C-47, and that said car was on the same day forwarded and shipped from said Alvin, billed to the defendant, William Hartman, at St. Louis, Mo., by way of the Wells-Fargo Express Company, all according to shipping, billing, and routing instructions, given by said defendant or his agent, if you find that said defendant or his agent gave such shipping, billing, and routing instructions, then the court instructs you that said express company was the agent of the defendant Hartman in transporting said car of strawberries, and the plaintiff was in no way liable or responsible for any loss or injury to or deterioration in value in said strawberries, if any, which may have been occasioned by any improper handling or delays in transit by said express company, if you find and believe from the evidence that there was any such improper handling or delays in transit, and if you find and believe from the evidence that said berries were injured or caused to deteriorate in value thereby.

"(3) The court instructs the jury that if you find and believe from the evidence in this case that in the purchase of the car of strawberries mentioned in plaintiff's petition, and referred to in the evidence as car C-47, the defendant was represented at Alvin, Tex., by J. H. McKnight, as defendant's agent; and if you find and believe from the evidence that, while the strawberries which were shipped in said car C-47 were being inspected and packed and loaded into said car by defendant, said McKnight had unrestrained access to the same and full opportunity to examine and inspect said strawberries and the operations of packing and loading the same, and that he knew the variety and quality and trade classifications of the strawberries that went into said car; and if you further find that said McKnight, as such agent for defendant, thereafter accepted said car load of strawberries and gave instructions for the shipping, billing, and routing of the same to defendant — then and under such facts, if you find and believe the same to be true, the court instructs you that the defendant is estopped and forbidden to deny that said strawberries were of the variety, quality, and trade classification which he purchased, and that the defendant is bound under the law to pay to plaintiff the purchase price for same, and if you find and believe said facts to be true, as above set out, then you will find your verdict in favor of plaintiff on the plaintiff's petition, without regard to what the condition of said berries was when they arrived in St. Louis, unless you find the facts to be as stated in instruction No. 8.

"(4) The court instructs the jury that if you find and believe from the evidence in this case that in the purchase of the car of strawberries, mentioned in the secound count of defendant's counterclaim and therein alleged to have been purchased from plaintiff on or about March 25, 1907, and being the car referred to in the evidence as car No. 104, the defendant was represented in the purchase of said car by J.H. McKnight, as defendant's agent at Alvin, Tex.; and if you find and believe from the evidence that, while the strawberries which were shipped in said car No. 104 were being inspected and packed and loaded into said car by defendant, said McKnight had unrestrained access to the same and full opportunity to examine and inspect said berries and the operations of packing and loading the same, and that he knew the variety and quality and trade classifications of the strawberries that went into said car; and if you further find that said McKnight, as such agent for defendant, thereafter and after said car had been shipped by plaintiff, and whilst the same was en route to Kansas City, purchased said car of strawberries for the defendant, Hartman, and ordered the same diverted en route from Kansas City to the defendant at St. Louis, Mo. — then and in such case, if you find and believe the same to be true, the court instructs you that the defendant is estopped and forbidden to deny that said strawberries were of the variety, quality, and trade classification which he purchased, and that the defendant is not entitled under the law to recover any sum from plaintiff on account thereof, and if you find and believe said facts to be true, as above set out, then you will find your verdict in favor of plaintiff and against the defendant on said second count of the defendant's counterclaim without regard to what the condition of said berries was when they arrived in St. Louis, unless you find the facts to be as stated in instruction No. 8."

For defendant:

"(7) The court instructs the jury that if they find from the evidence that in March, 1907, the plaintiff, Alvin Fruit & Truck Association, was engaged in the business of growing fruit and produce in Texas and selling same to the trade, and that plaintiff was aware that defendant, William Hartman, was then engaged in the fruit and produce business in St. Louis, Mo., and was buying the berries in controversy for the St. Louis market, then there was an implied warranty by plaintiff that the berries which plaintiff sold defendant were merchantable and suitable to the St. Louis market; and if the jury further find that defendant, Hartman, ordered from plaintiff two cars...