Brandtjen & Kluge v. Hunter

• Decision Date: 14 December 1940
• Citation: 145 S.W.2d 1009,235 Mo.App. 909
• Parties: BRANDTJEN & KLUGE, INC., A CORPORATION, APPELLANT, v. JAMES A. HUNTER, DOING BUSINESS AS HUNTER'S TRI-STATE PRINTING COMPANY, RESPONDENT
• Court: Missouri Court of Appeals

145 S.W.2d 1009

235 Mo.App. 909

BRANDTJEN & KLUGE, INC., A CORPORATION, APPELLANT, v. JAMES A. HUNTER, DOING BUSINESS AS HUNTER'S TRI-STATE PRINTING COMPANY, RESPONDENT

Court of Appeals of Missouri, Springfield

December 14, 1940

Rehearing Denied December 31, 1940.

Appeal from the Circuit Court of Jasper County.--Hon. Ray E. Watson Judge.

REVERSED AND REMANDED.

Case reversed and remanded.

Robert M. Coleman and W. Raleigh Gough for appellant.

(1) The verdict of the jury is not responsive to the pleadings; under the pleadings, and under the undisputed evidence, plaintiff was entitled to judgment in replevin, as prayed for in its petition. 57 C. J., 520-521; Kegan v. Park (Mo.), 8 S.W.2d 858; Thayer-Moore Brokerage Co. v. Campbell, 164 Mo.App. 8, 147 S.W. 545; Glaus v. Gosche, 18 Mo 121; 57 C. J. 517. (2) The court erred in admitting parol evidence as to the contents of documentary evidence, without any foundation being laid for the admission of secondary evidence. 22 C. J. 980, 988; Redman v. Peirsol, 39 Mo.App. 173; Morton v. Heidorn, 135 Mo.App. 608, 37 S.W. 504; Best v. Equitable Life Assur. Soc., 299 S.W. 118. (3) The court erred in admitting testimony tending to show that Rudolph waived the provisions of the warranty, for the reason that Rudolph had no authority to waive such provisions. 2 C. J. S., 1252, 1254. (4) The court erred in admitting testimony as to the "rated speed" of the press. Little v. Widener, 226 Mo.App. 525, 32 S.W.2d 116; Sunderland v. Hackney Mfg. Co., 192 Mo.App. 287, 181 S.W. 1192; J. B. Colt Co. v. Farmer (Mo. App.), 286 S.W. 399; Rock Island Impl. Co. v. Wally (Mo. App.), 268 S.W. 904; Phoenix Cotton Oil Co. v. Morrow-Stout Wholesale Grocer Co. (Mo. App.), 236 S.W. 415. (5) The court should have given plaintiff's offered Instruction 1-C, in the nature of a demurrer to the evidence upon defendant's counterclaim. (a) The evidence shows that the conditions of the warranty have not been performed. Ajax Rubber Co. v. White, 216 Mo.App. 283, 264 S.W. 466. (b) The counterclaim failed to state a cause of action, and the verdict and judgment are not supported by the pleadings. 13 C. J. 724; Thompson v. Stearns, 208 Mo.App. 338, 234 S.W. 1059; Streib v. Local Lodge (Mo. App.), 40 S.W.2d 519; Globe-American Corp. v. Miller Hatcheries (Mo. App.), 110 S.W.2d 393; Mathieson v. Railroad, 219 Mo. 542, 118 S.W. 9; Daniel v. Pryor (Mo.), 227 S.W. 102. (6) The court erred in giving Instruction No. A on behalf of defendant. (a) The instruction, although purporting to cover the entire case under the counterclaim, omits to require the jury to find facts essential to a recovery under the counterclaim. State ex rel. v. Becker, 336 Mo. 59, 77 S.W.2d 100; Noonan v. Hartford Fire Ins. Co., 21 Mo. 81. (b) The instruction erroneously submits the issue of "special damages" despite the uncontradicted evidence that such special damages were not in the contemplation of the parties when the contract was made. Minneapolis Threshing Mach. Co. v. v. Bradford, 206 Mo.App. 609, 227 S.W. 628; Mark v. H. D. Williams Cooperage Co., 204 Mo. 242, 103 S.W. 26. (c) The instruction is erroneous in allowing special damages, despite the undisputed evidence that defendant's alleged losses were the result of his continued use of the press after he had discovered the alleged defects therein. Mark v. H. D. Williams Cooperage Co., 204 Mo. 242, 103 S.W. 26; Saxony Mills v. Hauck (Mo. App.), 208 S.W. 868; Minneapolis Threshing Machine Co. v. Bradford, 206 Mo.App. 609, 227 S.W. 628; Hope Eng. Co. v. Lightfoot & Sons, 193 S.W. 624. (d) The instruction is further erroneous in that it allows the recovery of "special damages" without requiring the jury to find the essential elements of a case for special damages. Authorities under the two preceding subheads. (e) The court erred in submitting the issue of "special damages" for the further reason that the proof did not show their existence with reasonable certainty. United Iron Works v. Twin City Ice & Creamery Co., 317 Mo. 125, 295 S.W. 109; New Deal Tire Co. v. Jarratt (Mo. App.), 79 S.W.2d 744; Spruce Co. v. Mays, 330 Mo. 582, 62 S.W.2d 824; Gray v. Wabash Railway Co., 220 Mo.App. 773, 277 S.W. 64. (f) The instruction erroneously submitted the issue of a "new contract" allegedly made at the time the new parts were installed. Authorities under Point 5 (b); Richardson v. Landreth (Mo. App.), 260 S.W. 128; Moore v. Miller (Mo. App.), 100 S.W.2d 331. (g) The instruction erroneously allowed "special damages" after October, 1937. (h) The instruction allows "double damages." (7) The court erred in admitting testimony as to the value of the press at times other than the date of sale and delivery. Stearns v. McCullough, 18 Mo. 411; Brown v. Emerson, 66 Mo.App. 63; Layson v. Wilson, 37 Mo.App. 636. (8) The court erred in allowing defendant to testify as to what his records showed as to the time required in running the press on certain jobs. Authorities under Point 2. (9) The verdict is excessive. Layson v. Wilson, 37 Mo.App. 636.

Roy Coyne and Emerson Foulke for respondent.

(1) Instruction B properly instructed the jury that if they found for defendant on the counterclaim in an amount equal to the balance due on the notes that their verdict should be against the plaintiff on its cause of action. Caruthersville Plumbing & Auto Co. v. Lloyd, 240 S.W. 838, 840; Close v. Hurst, 151 Mo.App. 75, 131 S.W. 751. (2) Respondent had a right under Sec. 777, R. S. Mo. 1929, to counterclaim because his counterclaim arose out of the transaction set forth in appellant's petition as the foundation of its claim and was connected with the subject of the action. Replevin is intended in one action to effect a complete adjudication of all the rights of all the parties involved, up to and including the date of the trial. Sec 777, R. S. Mo. 1929; McCormick Harvesting Machine Co. v. Hill, 104 Mo.App. 544, 79 S.W. 745, 749; Scheidel Western X-ray Co. v. Bacon, 201 S.W. 916, 919; Etheridge v. Terry, 278 S.W. 1052; McWherter v. Randall, 232 S.W. 1070. (3) The reception of parol testimony as to the contents of letters is a matter which rests largely within the discretion of the trial court, and his decision will not be disturbed unless there is a clear abuse of discretion. Where the letters in question relate to collateral matters and the letters are in the possession of the adverse party, parole evidence of their contents is clearly admissible. Scrivener v. American Car Foundry Co., 50 S.W.2d 1001; Cable v. Johnson, 63 S.W.2d 453; 22 C. J., p. 1035, par. 1326, p. 1040, par. 1332, p. 1052, par. 1352, p. 1059, par. 1358; Spellmyer v. Theo. Hiertz Metal Co., 272 S.W. 1068; O'Donnell v. Kansas City Life Ins. Co., 277 S.W. 973. (4) As to third parties, an agent's acts are authorized if they are within the apparent scope of his authority. Rudolph acted within the apparent scope of his authority as appellant's branch manager in waiving the provisions of the warranty and his acts were subsequently ratified by the appellant in making the repairs in question at respondent's place of business as promised by Rudolph. Bank of Ferguson v. Block, 115 S.W.2d 27; Sinclair Refining Co. v. Farmers Bank of Portageville, 91 S.W.2d 122; Kuraner v. Columbia Nat. Bank of K. C., 90 S.W.2d 465; Kouving v. Greene County Building & Loan Association of Springfield, 38 S.W.2d 40; Madison v. Williams, 16 S.W.2d 626; Farm & Home Savings and Loan Association of Missouri v. Stubbs, 98 S.W.2d 320. Attempting to repair waived right to have machine returned. Wayne Tank Co. v. Evans, 15 S.W.2d 895. (5) Evidence of rated speed was admissible on the question of the measure of damages. If admissible for any purpose, it cannot be excluded. Cazzell v. Schofield, 8 S.W.2d 580; Neal v. Caldwell, 34 S.W.2d 104; City of St. Louis v. Worthington, 52 S.W.2d 1003. Damages sustained as a direct result of the defects in question may be shown. New Deal Tire Co. v. Jarrett, 79 S.W.2d 744; Peterson Oven Co. v. Bread Co., 21 S.W.2d 219. (6) A cause must be tried in appellate court on same issues as in the lower court. Kincaid v. Bert, 29 S.W.2d 97; Benz v. Powell, 93 S.W.2d 877. A theory not presented below could not be considered on appeal. Goldwyn v. Indemnity Ins. Co., 72 S.W.2d 866. (7) There was no error in the refusal to give plaintiff's offered instruction 1-B in the nature of a demurrer to the evidence upon plaintiff's counterclaim. On appellant's demurrer to the evidence, respondent was entitled to have the evidence considered in the light most favorable to him and to have every reasonable inference indulged in his favor. Mahaney v. Kansas City Transit Co., 329 Mo. 793, 46 S.W.2d 817. (8) Instruction A correctly submitted the cause under the issues made by the pleadings and under the theory of the case as tried in the lower court. It was amply supported by the evidence, correctly defined the measure of damages and fairly submitted the questions of fact for the jury under the pleadings. New Deal Tire Co. v. Jarrett, 79 S.W.2d 744; J. A. Tobin Construction Co. v. Davis, 81 S.W.2d 474; Peterson Oven Co. v. Cap. Sheaf Bread Co., 21 S.W.2d 219. (9) Testimony as to the value of the press at any time was admissible. The evidence showed that under normal conditions it would last twenty years, with a depreciation of five per cent per year. Had the defects failed to develop for six months, it would be unreasonable to deny purchaser the right to show value of press after defects were discovered. In a replevin suit, evidence of value is always admissible up to date of trial. (See authorities under 1.) (10) The testimony of respondent as to damages as taken from his records was proper. The records were in court and were used by the appellant in cross-examination. It was within the discretion of the court to...