Campbell v. Buller

• Decision Date: 20 December 1888
• Citation: 32 Mo.App. 646
• Parties: H. E. CAMPBELL et al., Respondents, v. R. F. BULLER, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 646

H. E. CAMPBELL et al., Respondents, v. R. F. BULLER, Appellant.

Court of Appeals of Missouri, Kansas City.

December 20, 1888

Appeal from Jasper Circuit Court. --HON. M. G. MCGREGOR, Judge.

AFFIRMED (upon condition of remittitur ).

The case is stated in the opinion.

H H. Harding, for the appellant.

(1) The first instruction given on the part of the plaintiffs told the jury that if they found that the windmill was put up and in running order by plaintiffs according to contract, and defendant refused to give his note, they should find for the plaintiffs " and assess the damages at one hundred and fifty dollars and interest at eight per cent. from the time when it was so put up," thus fixing the amount of the recovery and assessing the damages in fact, which was a clear invasion of the province of the jury and a fatal error. Cates v. Nickell, 42 Mo. 169; R. S. sec. 3634. The court might just as well have instructed the jury that if they found that the plaintiffs had fulfilled their contract they should say so in their verdict and it would count up the amount of the damages and save them the trouble. Besides the mill might have been put up according to contract and broken down completely the next day and plaintiffs refused even to attempt to repair it and yet according to this instruction they would have been entitled to a full recovery. (2) The plaintiffs' second instruction is manifestly erroneous. It was nowhere alleged in the pleadings nor was there any evidence tending to show that the failure of the machinery was caused by any neglect or want of proper care in its management, and any such an instruction could only mislead and confuse the jury. Camp v. Heelan, 43 Mo. 591; Dailey v. Huston, 58 Mo. 361, 368, 369; Doebling v. Loos, 45 Mo. 150. (3) The plaintiffs' third instruction is subject to the same objection, that there was no issue upon which to predicate it. It is not alleged either in the petition nor in the replication that the breaking of the pump was caused by the refusal of defendant's servant to dig the trench below the frost line. Camp v. Heelan supra. (4) And the instruction that was altered by the court and given of its own motion was equally erroneous for the same reasons. (5) The court ought to have given instruction number three asked for by the defendant. There was evidence in support of the allegation that the machinery was intrinsically defective and never would and never did work properly and that defendant had suffered great loss and inconvenience thereby, and he was entitled to have that question fully and fairly presented to the jury. If, as a matter of fact, the pump was so defective that it would not run for a whole winter and the defendant had to hire extra hands to water his stock, it would be a monstrous injustice to compel him to pay, not only full price for the defective pump, but also interest on it while it was standing still. Ridens v. Ridens, 29 Mo. 470. (6) The defendant's motion for a new trial ought to have been sustained, not only on account of the errors in the instructions, but also on the ground of surprise and on the affidavit of newly-discovered evidence. If the issue had been raised (as it might have been in the replication), as to the alleged refusal of George Meredith to dig the ditch to a proper depth, then defendant would properly be held to have prepared himself to meet it, but as that was not done and the matter was sprung for the first time in the midst of the trial, and the case was made to turn upon the point, the court ought to have given defendant an opportunity to get in his rebutting testimony. Otherwise the rules of pleading might as well be abolished. Bryce v. Morey 40 Mo. 106; R. S., sec. 3704.

Thomas Hackney, for the respondents.

(1) The objections urged by appellant against the first instruction given are clearly untenable. If plaintiffs sold the mill under the contract, and put it up in good running order and fully complied with the terms of the written contract and defendant refused to give his note, then plaintiffs were entitled to recover the contract price with interest; and the instruction was proper. Sedgwick Meas. Dam. [2 Ed.] 199, 202. (2) The second instruction was proper under the evidence--though the evidence on this point is purposely abbreviated by appellant in his abstract. Even if there had been no evidence on this point to support this instruction still the instruction, could not prejudice appellant. All that respondents were required to do under their written contract to entitle them to their money was to put up the mill in good running order. They did not warrant the mill to run at all events, but simply warranted for one year from its erection against winds that do not unroof buildings, and agreed to supply any defective parts during one year when notified. The instruction simply required of respondents more than was necessary to entitle them to a verdict, and could in no wise prejudice appellant. Wright v. McPike, 70 Mo. 176; Gaty v. Sack, 19 Mo.App. 477. (3) Appellant is in no position to complain of the action of the trial court in giving the instructions asked exonerating respondents from any blame if the trench for the supply-pipe was not dug deep enough by appellant's servant. True nothing appears in the petition or replication as to such failure or refusal, and true it is that the answer is equally silent as to the supply-pipe not having been placed below the frost-line, or deep enough in the ground. The answer contained no general denial and the only objection made therein as to the manner in which the machinery was put up is that the mill was not placed perpendicularly above the pump. The evidence that the pipe was not placed below the frost-line was objected to by the respondents when offered by appellant on the trial, but being admitted over their objection, the respondents also introduced the evidence on that point in their favor. The appellant also asked an instruction based on so much of this evidence as he deemed in his favor, and having given him what he asked the court simply acted equally fair with respondents and gave an instruction on their part of the testimony on this point. (4) If error was committed by the trial court in this regard it was committed on the invitation of defendant and he cannot be heard to complain. McGonigle v. Dougherty, 71 Mo. 259; Holmes v. Braidwood, 82 Mo. 617; Smith v. Culligan, 74 Mo. 389. The other instruction was covered by those already given. (5) The affidavit of surprise accompanying defendant's motion for a new trial is not sufficient. There is no statement that the verdict is unjust, or that defendant has merits. Culbertson v. Hill, 87 Mo. 526.

RAMSAY J.

Plaintiff's petition is in words and figures following: " Plaintiffs state that on the twenty-seventh day of November, 1885, plaintiffs were partners doing business under the firm name and style of H. E. Campbell & Co. and that on said day they sold and delivered to the defendant one number two, ten foot windmill and tower complete at the price of one hundred dollars; one force pump air chamber threeway, cock and brass cylinder for twenty-five dollars; one reservoir tank, round, size six feet bottom, four feet square, at twenty dollars, and twenty feet well pipe and rods at twenty-five cents per foot, aggregating the sum of one hundred and fifty dollars, for which defendant, by his agreement in writing herewith filed, promised, when said mill was up and in good running order, to execute to plaintiffs by their said firm name his promissory note for the said sum of one hundred and fifty dollars, payable to plaintiffs, said firm due December 1, 1886, with eight per cent. interest payable annually; that said mill was put up and in good running order on the third day of December, 1885, and the execution and delivery of said note was demanded of defendant and refused, and defendant has ever since refused and still refuses to execute said note, and has refused and still refuses to pay said sum; that by the terms of ssid agreement it was provided that in case defendant failed to execute said note then the said sum shall then and on said failure be due; that plaintiffs have fully performed their part of said agreement and the said sum is now due and remains wholly unpaid. Wherefore they ask judgment against defendant for the sum of one hundred and fifty dollars, with eight per cent. interest thereon from the third day of December, 1885, and for costs." The defendant's answer is in the following words, omitting caption and signature: " Further answering defendant says that the said windmill was expressly warranted to be well made and of good materials, and to do good work, and that plaintiffs agreed that if any part thereof proved defective within one year they would replace it upon notice, and that the said windmill was not well put up, but on the contrary was not set perpendicularly above the pump, in consequence of which it never worked properly, and in addition to that the pump was worthless and constantly out of repair and broken, so as to be useless to defendant, and the plaintiffs...