Close v. Hurst

• Decision Date: 10 November 1910
• Citation: 151 Mo. App. 75,131 S.W. 751
• Parties: CLOSE v. HURST.
• Court: Missouri Court of Appeals

131 S.W. 751

151 Mo. App. 75

CLOSE v. HURST.

Springfield Court of Appeals. Missouri.

November 10, 1910.

1. WITNESSES (§ 56) — COMPETENCY — HUSBAND AND WIFE—AGENCY.

The agency of the wife or husband for the other may be established by the testimony of the one claiming to have acted as agent for the other.

2. TRIAL (§ 89)—EVIDENCE—STRIKING OUT TESTIMONY.

Defendant claimed that plaintiff on the sale of goods by plaintiff to defendant had furnished him a written warranty which had been destroyed and defendant testified as to the contents of it. On cross-examination defendant was presented with a paper, which he admitted he thought was a copy of the warranty. Held, that it was proper to refuse to strike out defendant's testimony as to the contents of the warranty.

3. EVIDENCE (§ 186)—SECONDARY EVIDENCE.

Where defendant claimed that on a sale of goods to him by plaintiff a written warranty was given which had been destroyed, and he testified as to its contents, if defendant did not give the contents correctly, and plaintiff had a copy of the warranty, he could offer it in evidence.

4. REPLEVIN (§ 12)—DEFENSES—BREACH OF WARRANTY ON SALE OF GOODS.

In replevin to recover goods sold under a chattel mortgage, and which had not been completely paid for, if defendant's damages for breach of warranty were equal to the amount unpaid, it was a defense to the action.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by F. D. Close, doing business as the Webb City Stove Company, against Jesse Hurst. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Horace Merritt, for appellant. A. G. Young, for respondent.

COX, J.

Action in replevin for possession of a stove and sewing machine. Action begun before a justice of the peace, appealed to the circuit court, where, upon trial before a jury, a verdict was returned in favor of defendant, and plaintiff has appealed. The plaintiff had sold the articles in question to defendant upon the installment plan, and defendant was to pay $1 each week until the amount of the purchase price had been paid. He had paid a large part of the purchase price when the payments ceased, and the plaintiff replevied the stove and machine under chattel mortgages that were taken to secure the purchase price at the time of the sale. The defense was that the articles sold had been warranted and that they were not as warranted, and asked that the damages to which defendant was entitled for a breach of the warranty be offset against the claim of the plaintiff. At the close of the testimony, the court instructed the jury that if defendant executed the notes and chattel mortgages, and had not paid for the articles in full, and plaintiff had made demand for possession of the property which had been refused, then they should find for the plaintiff, unless they should further believe from the greater weight of the testimony that plaintiff had guaranteed the property in the particular shown in the evidence, and that the stove and machine did not conform to the guaranty. Then, if in that event they should believe that the damages defendant suffered thereby were equal to or greater than the amount due the plaintiff on the notes, they should find for the defendant.

During the progress of the trial the wife of defendant was offered as a witness in his behalf, and was allowed to testify over the objection of plaintiff. The defendant had previously testified that he made his wife his agent to look after having repairs made on the stove and the machine. The wife also testified that her husband had directed her to have this done. It is now insisted that the wife could not testify...