Calhoun v. Paule

• Decision Date: 17 May 1887
• Citation: 26 Mo.App. 274
• Parties: JOHN R. CALHOUN ET AL., Defendants in Error, v. DANIEL PAULE, Plaintiff in Error.
• Court: Missouri Court of Appeals

26 Mo.App. 274

JOHN R. CALHOUN ET AL., Defendants in Error, v. DANIEL PAULE, Plaintiff in Error.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Reversed and remanded.

P LEAHY and A. R. TAYLOR, for the plaintiff in error.

GEO. R LOCKWOOD, GILBERT ELLIOTT, for the defendants in error: No acceptance of the engine in question was necessary to vest title in the defendant, Paule & Mummert having given a written order therefor. Rev. Stat., sect. 2514; Story on Sales (4 Ed.) sects. 257, 259, and notes. The delivery of the engine to the railroad company, consigned to Paule &amp Mummert, was a delivery to their agent, and vested title thereto in them. Graff v. Foster, 67 Mo. 512; Story on Sales (4 Ed.) sect. 306 and notes; Schwabacher v. Kane, 13 Mo.App. 129. The plaintiff's warranty being an express and special warranty, any implied warranty as to matters not specified, or that the engine was fit for its intended use, was excluded. Pavement Co. v. Smith, Beggs & Rankin Machine Co., 17 Mo.App. 268. The defendant's instructions were properly refused, because they assume or declare that the burden of proving the warranty good rested on the plaintiffs. Branson v. Turner, 77 Mo. 495; Johnson v. Agricultural Co., 20 Mo.App. 100; Walls v. Gates, 6 Mo.App. 242.

OPINION

THOMPSON J.

This action was brought before a justice of the peace to recover the purchase price of a steam engine sold by the plaintiffs to the defendant. On a trial de novo, in the circuit court, the plaintiffs had a verdict and judgment for two hundred dollars, the sum being fifty dollars less than the agreed purchase price, from which judgment the defendant prosecutes this appeal. The plaintiffs were dealers in agricultural implements at Carrollton, Illinois, and the defendant was engaged in business, in partnership with Mr. Mummert, at East Carondelet, Illinois. He and Mr. Mummert desired the engine for use in a small feed mill, which they were then erecting at East Carondelet. Immediately after the transaction in controversy, the defendant and Mummert dissolved partnership, Mummert selling out his interest in the firm to the defendant. The engine was shipped by the plaintiffs to the defendant, in compliance with the following order:

" ST. LOUIS, MO., November 9, 1885.

Messrs. John R. Calhoun & Co.:

GENTLEMEN:--Please prepare and ship at your earliest convenience, the following goods, viz:

1 Ten-horse large engine, Garr, Scott & Co.'s make, now at Carrollton, for two hundred and fifty dollars, said engine guaranteed to be in first-class running order, according to the letter of Oswald Jackson, Carrollton, Ill. Terms, cash.

No agreements, conditions, or stipulations, verbal or otherwise, save those mentioned, will be recognized.

Yours respectfully,

PAULE & MUMMERT.

The letter of Oswald Jackson, referred to in the above letter, which, it would seem, had previously been shown by the plaintiffs to Paule and Mummert, was as follows:

" CARROLLTON, ILL., Nov. 4, 1885.

John R. Calhoun & Co.:

DEAR SIRS:--Mr. Geo. Darr has just now handed me your letter referring to his Garr-Scott engine on wood wheels. I put Mr. Darr's engine in thorough repair last fall, tested it to one hundred and fifty pounds, cold water pressure, which it stood--new piston ring--re-fixed slide valve and seat, etc.

The engine, to the best of my knowledge and belief, at the present time, is in perfect repair. Mr. Darr assures me he has worked it but one day since I repaired it; it is a very powerful engine for its size, even more than one would suppose.

Yours respectfully,

OSWALD JACKSON."

" The above engine referred to is ten-horse power."

The engine was shipped by the plaintiffs, on November 11, in pursuance of the above letter, by rail, to East Carondelet, and a duplicate of a bill of lading was forwarded to the defendant by mail. When the engine arrived on the car at East Carondelet, the defendant, Paule, inspected it, and had it inspected by Mr. Williams, a millwright, and wrote to the plaintiffs to the effect that it was not the engine which he had contracted for, and declined to receive it. Some negotiations, then and thereafter, took place between the plaintiffs and the defendant, in which Mr. Williams participated. The evidence is conflicting as to the result of these negotiations, but it appears that the plaintiffs agreed to throw off fifty dollars of the purchase price, if the defendant would take the engine, which he declined to do. The engine remained on a car on a side track, at East Carondelet, until January 6, when the defendant wrote to the plaintiffs as follows:

" Railroad company wants that engine out of the way at East Carondelet. What shall I do with it? Please send me word at the earliest time."

Thereafter the railroad company took the engine to its warehouse, at East St. Louis, Illinois, where it remained on storage until the day of the trial. No part of the agreed purchase price was ever paid or tendered by the defendant.

The contract, under which the engine was sold, must be construed to have embodied a special warranty, on the part of the plaintiffs, that it was " in first-class running order, according to the letter of Oswald Jackson." The statements in the letter of Oswald Jackson, thus imported into the contract, were to the effect that the engine was " in thorough repair," " in perfect repair," tested to a cold water test of one hundred and fifty pounds pressure, " a powerful engine for its size," and of " ten-horse power."

Testimony, drawn from the plaintiffs' witnesses, on cross-examination, tended to show that the engine was not in perfect repair; that some essential parts of it were missing, and that other parts were not in good condition, though it was in a condition to be operated. These witnesses of the plaintiffs, however, while admitting these facts, expressed opinions that the engine was in fair condition and good condition. Testimony adduced by the defendant was to the effect that it was in a very bad condition; that it was not a ten-horse power engine; that it was in such a condition that it would have been dangerous to use it, and that it would not support a pressure of more than forty pounds to the square inch. According to the testimony of the plaintiffs' witnesses, on cross-examination, the cylinder head was patched, and so was the supply; the fire box was burnt, and patched with a flange and screw bolts, called a " soft patch; " the frame door was cracked; some of the stirrups were missing; there was no water gauge or steam gauge; the wheels and frame were partly worm eaten; the engine had no blow pipe and no belt; the governor was without a belt. Those engines were not built with blowers on them at the time when this was built, though it does not appear that blowers were subsequently added, or that a blower was not necessary to put such an engine " in perfect running order." One of the plaintiffs' witnesses, who had worked twenty years for the makers of these engines, having inspected it, testified, as others did, that it was in " fair running order." He and another witness, for the plaintiffs, testified that the patching of the crown sheet would not interfere with the running of the engine, though he admitted that " patching a boiler does not do it much good." There was one patch on the boiler and one on the cylinder head. This witness said: " Some bolts were wanting, and other things; but this would not constitute a defect in the engine. The wheels and frame were not broken or rotten, except that one spoke was gone, but that did not affect its first-class running order."

This testimony, as to the bad condition of the engine, drawn from the plaintiffs' own witnesses, was greatly strengthened by the testimony of the defendant's witnesses, who inspected the engine. They were all expert machinists. One of them took off the cylinder head and found that the cylinder could not be rebored; the crown sheet of the fire box was broken, and very poorly patched, and showed leakage; the door frame was broken, and a couple of bolts were missing; two water gauges were off, and there was no steam gauge; " the cylinder head was patched, and was so thin that it was only fit for the scrap box; it could not be bored any more; it was so far worn that it would not stand any more boring; the cylinder was entirely too light for a ten-horse power engine; it was less than three-eighths of an inch in thickness. * * * The patch on the boiler was not properly put on; the whole engine was in very bad condition; the wood work was rotten and worm eaten; the blower was gone; the gearing of the governor was almost entirely worn out; the pump was worn out and the crank was patched; the rod brasses were worn out; the lock of the cylinder head was broken; there was no governor belt on it; the truck brasses were rotten and worm eaten."

Another witness for the defendant, who had been boiler inspector of the city of St. Louis for eight years, having examined the engine, testified: " The boiler was all burnt out, and a country patch put on it; the cylinder was so weak that it could not be bored to stand a pressure, and at its opening the metal was only one-eighth of an inch thick; the condition of the boiler alone was sufficient to condemn the engine; the supply pump was a total wreck; it would have to be removed and a bran new one put in; the engine was in no running order; the grate bars were burnt; the fire frame was all wrecked and broken; the safety valve was cracked; there was no water gauge on it; the frame was pretty much rotten, and some spokes were missing from the wheels; there was no steam gauge; the main frame of the engine was cracked, and a band put around it. I would...