City Light, Power, Ice & Storage Company v. The St. Marys Machine Company
| Decision Date | 07 April 1913 |
| Parties | CITY LIGHT, POWER, ICE & STORAGE COMPANY, Respondent, v. THE ST. MARYS MACHINE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.
Judgment affirmed.
New & Krauthoff, M. H. Winger and P. E. Reeder for appellant.
(1) The court's action in permitting respondent to amend its petition at the close of the trial and after both sides had rested, was erroneous. Eldredge v. Hargraves, 30 Neb. 642; Meacham v. Cooper, 36 Minn. 227, 30 N.W 669. (2) Special damages are a proper element of recovery in this sort of an action if they are specially pleaded. Mallory v. Elwood, 120 Ia. 362, 95 N.W. 176; 35 Cyc 451; Ellis v. Tips, 40 S.W. 524. (3) It is equally true that the original petition in this case did not state a cause of action for rescission of the contract. The necessary averments in an action for rescission of a contract of sale for breach of warranty are: First, the terms of the warranty second, facts constituting the breach of the warranty; third, that the buyer had elected to rescind the sale immediately upon discovering the defects in the article purchased, and a return of the property to the seller or an unconditional tender back of the same; or in lieu of a return or tender back of the property, facts sufficient to excuse the failure to make such return or tender. Noel v. Hughes, 152 Mo.App. 192; Walls v. Gates, 6 Mo.App. 242; Marrow v. Rees, 69 Pa. St. 368; Plant v. Condit, 22 Ark. 454; Hoffman v. Hampton, 96 Ia. 319; Ruby Co. v. Kremer, 81 S.W. 251; Garland v. Spencer, 46 Me. 528; Erwin v. Detwiler, 67 A. (N. J.) 932; Barbour v. Hurlbut, 137 Mich. 534; Bank v. Wickersham, 99 Cal. 655; Crooks v. Eldridge, 64 Oh. St. 195; 35 Cyc. 609; Strong v. Strong, 102 N.Y. 70; McGrew v. Smith, 136 Mo.App. 343; Cahn v. Reed, 18 Mo.App. 115.
E. S. Bennett and Charles R. Pence for respondent.
But if the court erred in allowing the amendment, the defendant waived its right to take advantage of the error by refusing to stand upon its objection, and by proceeding with the trial of the issues arising upon the amended petition. Grymes v. Mill & Lumber Co., 111 Mo.App. 358; Scovill v. Glasner, 79 Mo. 454-455; Sauter v. Leveridge, 103 Mo. 621; Holt County v. Cannon, 114 Mo. 519; Forrister v. Sullivan, 231 Mo. 352; Jones v. Traction Co., 137 Mo.App. 411-412.
--To make this opinion reasonably clear it is necessary to set out the facts before stating the nature of the case or discussing the questions involved.
On May 26, 1911, the plaintiff, engaged in supplying electric light and power to the inhabitants of the town of Lee's Summit, entered into a written contract with defendant for the purchase of a gasoline engine to use in plaintiff's power plant at hours when its larger steam engine was not needed. By the terms of the contract the engine was to develop fifty brake horse power, to have a speed of 225 revolutions per minute, to run smoothly, and, when operating a Westinghouse direct current generator, defendant guaranteed it would make a good commercial light, and not vary in its speed more than two per cent when its load was increased from a one-third to a full load, and at full load would consume only 1/10 gallon of naphtha per horse power hour. Defendant also warranted the engine for a period of twelve months after the same was first started and that it would run smoothly and develop the actual horse power for which it was sold. Any defect in material or workmanship of said engine, discovered within twelve months after engine first started, was to be made good by defendant upon written notice immediately following such discovery.
The price of the engine was $ 1550, defendant paying the freight to Lee's Summit. Of this purchase price, $ 50 cash was to be paid down with the contract, $ 150 and the freight upon arrival at Lee's Summit, and the balance in twenty-five equal notes, one payable each month, commencing thirty days after engine's arrival, and drawing seven per cent interest. The ownership and legal title to said engine were to remain in defendant and not to vest in purchaser until the payment in full of the purchase price of the engine should be made, defendant in no manner releasing its title to the engine or any part of its patent monopoly respecting same until all of such indebtedness had been fully paid in cash. And upon default in the payment of any one of said notes when it became due, then all became due, and defendant had the right to retake said engine into its possession. The contract also provided that the defendant would furnish a competent man to install the engine.
The engine arrived about July 1, 1911, and was installed in plaintiff's power house by defendant's erecting engineer, Mr. Goodrich. However, after installing, Goodrich did not get the engine to develop fifty horse power, nor would it run smoothly; but he assured plaintiff that it would do so as soon as the new wore off, as all machinery worked a little hard when new. Plaintiff then attempted to run the engine but it would not carry the load required; it would make 225 revolutions per minute with no load on, but as soon as a load was put on, the engine would slow up, and it never at any time developed more than thirty-five of the fifty horse power required, oftentimes not over eighteen to twenty horse power, and would use from one-third more to double the amount of naphtha specified. It was further shown that up to fifteen or twenty horse power the engine would make a good light, but when the number of lights went on requiring a greater horse power, the engine would "die down" causing the lights to fluctuate and grow dim, too dim for practical use.
As soon as plaintiff ascertained this, it wrote several letters to defendant, and got a mutual friend, Mr. Benedict, who was known to defendant, to write also, notifying defendant that the engine was not up to the requirements. In reply to this letter the defendant wrote they would send Mr. Goodrich, their erecting engineer, back there in a few days. Thereupon plaintiff waited for Goodrich to come, but as he did not come and nothing more was heard from the company, the plaintiff September 26, 1911, wrote defendant that it wanted its money back and the engine taken out. Thereupon, on October 21, 1911, defendant wired plaintiff that their "man will be at your plant Friday." Prior to this plaintiff had also sent defendant a telegram saying it would pay no more monthly notes until engine was made full rating.
Receiving no response to this letter, plaintiff, on November 8, 1911, began this suit. Sixteen days later a stipulation was entered into between the parties "that the gasoline engine, referred to and mentioned in the plaintiff's petition, herein be dismantled and shipped back to the factory of the defendant at the expense of defendant and that such action shall not, in any way, prejudice or affect the rights of the parties hereto in the trial of said cause on its merits," and the engine was shipped back to defendant in accordance therewith. It was shown that $ 308.15 was paid on the engine before it was known it would not work.
As originally filed, the petition alleged the corporate existence of both parties, the making of the contract and its terms, the failure of the engine to come up to requirements, and that it was worthless for the purpose for which it was purchased. It was also alleged that defendant was duly notified; that plaintiff did all that was required of it to do in the endeavor to make said engine work; that plaintiff had paid $ 308.15 on the purchase price before it knew the engine would not work; that it had executed the other unpaid notes; and that it was entitled to recover back the $ 308.15 paid on the engine and the other notes. Another paragraph stated that plaintiff had been damaged in the sum of $ 500 by reason of the failure of the engine to work. The petition concluded with a prayer for judgment in the sum of $ 808.15, for the return of said notes and for costs.
As the defendant was an Ohio corporation with no office in Missouri, the suit was brought by attachment and the writ was levied on the engine as the property of defendant. On November 10, 1911, the defendant entered its voluntary appearance and, as the suit was without bond, the attachment was dissolved. Thereupon the defendant filed its answer and a counter-claim asking judgment on the notes it held against plaintiff.
After the testimony was in, plaintiff was granted leave to, and did, amend its petition by interlineation, striking out of the petition and prayer all reference to special damages, and inserting an allegation that plaintiff had rescinded the contract and offered to return the engine. The defendant objected to this amendment on the ground that it changed the suit from one for damages for a...
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