Brown v. Weldon

• Decision Date: 24 February 1890
• Citation: 99 Mo. 564,13 S.W. 342
• Parties: BROWN v. WELDON et al.
• Court: Missouri Supreme Court

13 S.W. 342

99 Mo. 564

BROWN v. WELDON et al.

Supreme Court of Missouri.

February 24, 1890.

SALE — ACTION FOR PRICE — BREACH OF WARRANTY.

In an action on a note given for the price of a chattel bought for a particular purpose, whether on an express or implied warranty, with or without fraud, it is not necessary that the purchaser should return the article, or offer to return it, or rescind the contract, or that such article should be wholly worthless, in order that he may avail himself of his plea of a failure of consideration; but if he retains the article, and does not offer to return it, and such article is not wholly worthless, such plea can avail him only to the extent of the difference between the value of the article, had it been what it was represented to be, and its value such as it is shown to be.

Appeal from circuit court, Daviess county; CHARLES H. S. GOODMAN, Judge.

Case certified from Kansas City court of appeals.

Crosby Johnson, for appellant. Mr. Rush, for respondents.

BRACE, J.

In this case the judgment of the circuit court of Daviess county in favor of the defendants, on appeal to the Kansas City court of appeals, was reversed, and the case remanded. But, one of the judges of said court of appeals being of the opinion that the decision of the majority of the court rendered therein is contrary to a previous decision of the supreme court, the cause was certified to this court under the provisions of section 6 of the constitutional amendment of 1884, (1 Rev. St. 1889, p. 88.) The case, fully reported in 27 Mo. App. 251, was carefully considered by the court of appeals, and correctly decided, and we deem it necessary only to consider the point of difference between the majority and minority of the court, as distinctly brought out in the first paragraph of Judge PHILIPS' opinion, in which he says: "I cannot concur in so much of the opinion of my associate, Judge HALL, as seeks to maintain that the instructions given for defendants asserted error in directing a verdict for defendants, if the jury found from the evidence that the horse and jack were worthless for the purpose for which they were sold and bought, although they might be of some value for some other purpose;" and, in support of the correctness of the proposition asserted by the instructions, cites Barr v. Baker, 9 Mo. 850; Murphy v. Gay, 37 Mo. 535; and Compton v. Parsons, 76 Mo. 455. The last two cases, so far as they are authority in this contention, rest upon the first, and the whole upon this expression in the opinion in Barr v. Baker, supra: "If the article which forms the consideration of the note be worthless, for the purpose for which it was purchased, the consideration has wholly failed, although it may be of some value for another purpose." In that opinion it will be observed that, having disposed of the instructions upon the first plea, (that the note was obtained by fraud, covin, and misrepresentation,) which included one of plaintiff's instructions refused, the second, third, and fourth given for the plaintiff, and the second and fourth given for the defendants, the learned judge disposes of the other instructions in the last paragraph of the opinion thus: "The second ground of defense, to-wit, the failure of the consideration of the note, was properly placed before the jury by the other instructions given." The remainder of the paragraph, in which occurs the expression cited, and which is the cause of the present contention, is argument in support of this disposition of these instructions. Now, what issue did these other instructions "properly place before the jury?" They are, on behalf of the defendant: "(1) If they shall believe from the evidence in the cause that the...