Courtney v. Boswell

• Decision Date: 30 April 1877
• Citation: 65 Mo. 196
• Parties: COURTNEY ET AL. v. BOSWELL ET AL., PLAINTIFFS IN ERROR.
• Court: Missouri Supreme Court

65 Mo. 196

COURTNEY ET AL.

v.BOSWELL ET AL., PLAINTIFFS IN ERROR.

Supreme Court of Missouri.

April Term, 1877.

R. O. Boggess for plaintiffs in error.

I. Plaintiffs paid the money after the notes were due without compulsion, and upon full knowledge of the alleged breach of waranty, when the consideration for their promise had wholly failed. This was a voluntary payment. Can a party recover back money paid under such circumstances? Volenti non fit injuria. Claflin v. McDonough, 33 Mo. 412; State v. Powell, 44 Mo. 436; Christie's Adm'r v. St. Louis, 20 Mo. 143; Walker v. St. Louis, 15 Mo. 563; Draper v. Owsley, 15 Mo. 613; Trow v. Vt. Cent. R. R. Co., 24 Vt. 487; 1 U. S. Digest 286, Sec. 439; Brisbane v. Dacres, 5 Taunt. 143.

II. After discovering that the machine was worthless, plaintiffs agreed to keep it in consideration that defendants agreed to and did furnish new parts and a man to operate it. Afterwards they accepted a rebate of $25 out of the price to compensate them for defects, and in consideration thereof agreed to and did pay the balance as full adjustment of the whole controversy. By so doing they surrendered whatever right they may originally have had to recover on the alleged breach of warranty. Munford v. Wilson, 15 Mo. 540; Cutler v. Smith, 43 Vt. 577; Dodge v. Minn., &c. Roofing Co., 14 Minn. 49; Onderdonk v. Gray, 19 N. J. Eq. 65; Allen v. Hooper, 1 Freeman's Chy. 276; Dougherty v. Stamps, 43 Mo. 243; Bedford v. Moore, 54 Mo. 448.

III. When the rebate of $25 was allowed, and balance due for the machine was paid, a new agreement was then and thereby made and executed. This was a good accord and satisfaction, so that plaintiffs could not thereafter recover on the alleged breach of warranty. Munford v. Wilson, 15 Mo. 540; Goff v. Mulholland, 28 Mo. 397; Jenkins v. Hopkins, 9 Pick. 542; Coffin v. Jones, 11 Pick. 45; Tuttle v. Tuttle, 12 Met. 551. The court should have so instructed the jury. Merchants' Bk. v. State Bk., 10 Wall. 637; Callahan v. Warne, 40 Mo. 131; Boland v. Mo. R. R. Co., 36 Mo. 491.

Robert Adams, Jr., for defendant in error.

The petition sets forth a cause of action for a breach of warranty. Carter v. Black, 46 Mo. 384; Kenny v. James, 50 Mo. 316; and the instructions given placed the issues plainly before the jury.

NORTON, J.

This is an action to recover damages for an alleged breach of warranty, instituted in the court of common pleas for Cass county. The petition alleges that, in 1869, plaintiffs purchased of defendants one Hubbard Continental Reaping and Mowing Machine, at and for the price of $200; that, at the time of the purchase, defendants represented that said machine was fit and proper for the purpose of reaping grain and hay, and was a good machine in all its parts, and that plaintiffs, relying on said representations, purchased and paid for the same; that the said machine was wholly worthless, and that they had sustained damages in the sum of $200 from the 1st of June, 1870. Defendants, in their answer, deny that they made such representations as are charged in the petition, or that said machine was worthless and of no value, and set up, as a further defense, that all matters of difference and alleged damages growing out of the sale of said machine had been fully settled and adjusted between plaintiffs and defendants. This latter defense was denied by replication.

1. WARRANTY OF QUALITY: payment of purchase money after the discovery of defects; effect of as bar to action on warranty.

On the trial plaintiffs were introduced as witnesses, and their evidence tended to prove that the machine was purchased by them about May or June, 1869, at the price of two hundred dollars, for which they gave two notes, one due in three and the other in five months; that at the time of the sale defendants warranted the machine to be perfect in all its parts, capable of doing good work as a reaper; that said machine was imperfect in the gear shifter, and would not do good work as a reaper or mower, and that it was worthless, and that they had paid the price at which it was bought; that they discovered defects in the machine in a day or two after they bought it, and complained to defendants, who furnished another gear shifter, and said with it the machine would not still work; that they brought it back to defendants, who refused to take it back, but induced plaintiffs to take it back and try it again, promising that they would make it work; that defendants furnished another gear shifter and sent men down to operate the machine, but it would not work; that defendants then represented that the manufacturer had gotten up new and better gear shifters and they would furnish one of them, and requested plaintiffs to try that and keep the machine till it was furnished; that they never furnished such new and better gear shifter; that the first note was paid, and also the second, except $25, after plaintiffs knew of the defectiveness of the machine; that the remaining $25 was never to be paid unless the improved gear shifter was furnished, and if furnished it was to be paid; that said improved shifter never was furnished, and defendants failing to make said machine work it was abandoned. Two other witnesses were introduced whose evidence tended to show that the machine was worthless. Defendants offered no evidence, but demurred to that offered by plaintiffs, and asked judgment, which was by the court overruled, and to which they excepted at the time.

2 WARRANTY; measure of damages.

At the instance of plaintiffs the court instructed the jury, in substance, that if they believed, from the evidence, that plaintiffs purchased of defendants the machine in question, for the price of two hundred dollars, and at the time of the purchase warranted the same to be perfect, and fit and proper for the purpose of reaping and mowing grain and hay, and that said machine was in fact at the time of the warranty not a good machine, and was unfit for the purpose of reaping and mowing grain and hay, they would find for plaintiffs, unless they further believed from the evidence that the plaintiffs accounted and settled together concerning the damages plaint...