Craycroft v. W. G. & Walker Co.

• Decision Date: 23 May 1887
• Parties: W. T. CRAYCROFT, Respondent, v. W. G. WALKER & COMPANY, Appellants.
• Court: Kansas Court of Appeals

26 Mo.App. 469

W. T. CRAYCROFT, Respondent, v. W. G. WALKER & COMPANY, Appellants.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Barton Circuit Court, HON. CHARLES G. BURTON, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action, begun by attachment, for a breach of warranty in the sale of a printing press, known as the " Prouty Power Press," sold by the defendants to the plaintiff. The alleged guaranty and contract of sale are as follows:

" Guaranty and contract for sale and purchase of a No.

3 Prouty Power Press.

MADISON WIS., 188.

W. G Walker & Co. do hereby agree to furnish W. T. Craycroft a No. 3 Prouty Power Press, on, or before … 188 . ., and we guarantee the same as follows: ‘ Said press shall, if set up by our agent, or rightly and perfectly set up by any other party, in the hands of a competent pressman, make a good, even impression, give a good table ink distribution; work with a close margin, and register, and print anything from a full newspaper form down to small posters; and will, if necessary, with proper care and good pressmanship, print letter heads and other small work, doing it in a first-class manner. We also guarantee the press to be thoroughly and mechanically built, and to be durable, and to run as easily as other printing presses having same size forms.’ Said press to be furnished with rubber blanket one set ink roller cores, and one set ink roller cast, and four wrenches, and with the following extras: One job fountain.

[Signed] ....................

LAMAR, Mo., August 27, 1883.

On the above guaranty of Walker & Co., W. T. Craycroft, of Lamar, Missouri, does hereby order of Walker & Co. a No. 3 Prouty Power Press, the same to be shipped to Lamar, Missouri, at once. And I do hereby agree to pay to Walker & Co. for said press, the sum of six hundred and ninety dollars, as follows:

$150.00 to be paid in cash; $91.25 in a note, running four months with interest at ten (10) per cent., and $91.25 in a note, running seven months with interest at ten (10) per cent., and $91.25 in a note, running ten months with interest at ten per cent, and $91.25 in a note, running thirteen months with interest at ten per cent., and $175.00 in a band press, described herewith, to be shipped to Walker & Co., Madison, Wis. These notes are payable at any time during the year, at option of purchaser. And I do hereby further agree to deposit said cash and said notes in E. Egger & Son's bank, at Lamar, Missouri, on, or before, shipment, 188… Said cash and notes shall be deposited subject to the order of Walker & Co., Madison, Wis., whenever they present to said bank the proper shipping receipt, showing press to have been delivered on board cars, as above directed.

It is hereby further agreed by me that, within fifteen days after the receipt of the press (if said press is as guaranteed), I will, at my own expense, execute a first chattel mortgage on the above press, for $365.00, in favor of Walker & Co., to cover the above notes, and that I will have the same properly recorded, at my own expense, in the clerk's office, as demanded by law. And I will, also, insure the above press, in a good, reliable company, to the amount of the notes, and turn over said policy, as further security, to Walker & Co., or their order.

I do further agree that, in case I am unable to make said press work satisfactorily, within fifteen days from its receipt by me, I will notify Walker & Co., and ask them to set up said press free of expense to me. We do, also, agree to have in readiness proper forms for testing said press as soon as it is set up by the authorized agent of Walker & Co., and will pay said expenses to the agent setting up the press, if so directed by Walker & Co. And said Walker & Co. do hereby agree that, in case I fail to make the press work satisfactorily, as guaranteed, they will, within thirty days, put the press in good working order, as guaranteed (provided I have not broken, or injured, said press), or replace it with a new press that will work, or return the cash or notes paid over to them, and, also, refund the actual amount of cash paid out by me for freight.

It is hereby expressly understood and agreed, by the purchaser, that the sole right and title to said Prouty Power Press shall be in Walker & Co. till all the requirements and agreements of their contract have been fully and faithfully executed by said purchaser.

It is, also, further expressly understood and agreed that, after Walker & Co. have safely delivered said press on board the cars (at Madison, Wisconsin), carefully boxed, and correctly directed, they are fully released from all liability or responsibility for the breakage, while in transit or delivery.

[Signed] W. T. CRAYCROFT, Purchaser.

R. M. E. COOPER, Agent.

WALKER & Company.

See contract. This contract not good or binding upon Walker & Co., unless countersigned in writing by them."

On the trial, before a jury, the plaintiff offered and read in evidence the foregoing paper, against the objection of the defendant. The ground of the objection was, that the guaranty, on the part of the defendant, was not signed.

The plaintiff's evidence tended to show that the machine was not in accordance with the representations contained in the guaranty; that it failed in many important particulars to do certain character of work specified. The evidence also showed that the plaintiff received the machine, and used it for about six months before he gave any notice, or made any complaint of its failure to afford satisfaction. His explanation of this delay was, that the machine did well enough on the kind of work he used it on up to that time; but when, at the end of that time, he undertook to do the work on it of book printing, it failed to give satisfaction in this respect. Notice was then given to the local agent at Lamar, who attempted to make it work, but without success. This agent testified that the employes in the printing office had " " doctored" the type, or something, " in order to put up a job on him." This, however, was denied by plaintiff's witnesses.

There was much evidence offered on both sides as to the quality of the machine. But as the case is determined on the construction of the contract, it is not necessary to make further statement of the evidence.

The court gave, at plaintiff's instance, the following instructions:

" 1. The court instructs the jury that the contract and guarantee, read in evidence, bound the defendants, Walker & Company, to furnish to plaintiff such a press as if set up by defendants' agent, or rightly and perfectly set up by a competent pressman, would make a good, even impression, give a good table ink distribution, work with a close margin and register, and print anything, from a full newspaper form down to small posters, and would, if necessary, with proper care and good pressmanship, print letter heads and other small work, doing it in a first-class manner; and further guaranteed said press to be thoroughly and mechanically built, and to be durable, and to run as easily as other printing presses having and printing same sized forms. Now, you are further instructed that, if said press was properly and perfectly set up and put in operation, and that it failed in any of the particulars mentioned in said guaranty, or in all said particulars, then you will find the issues for the plaintiff."

" 2. If you find for the plaintiff, you will assess his damages at the sum of six hundred and ninety dollars, less such sum as you shall find, from the evidence, the press was actually worth for the purposes for which it was bought and is used, together with six per cent. interest per annum, upon the amount so found due, from December 31, 1884."

The jury returned a verdict for the plaintiff. Defendant has appealed.

TUCKER & COLE and THURMAN & WRAY, for the appellants.

I. The so-called guaranty should not have been admitted in evidence. There was no allegation in the petition that it was ever executed. There was no evidence that it had been executed, and the paper itself, on inspection, showed that it had not been executed.

II. When a witness is produced to testify as an expert, his qualification, as an expert, must be disclosed. Stonam v. Waldo, 17 Mo. 489; Koons v. Railroad, 65 Mo. 592; Wayner v. Jacoby, 26 Mo. 530; Paige v. Parker, 40 N.H. 47. And if his grounds of knowledge appear to be slight he will be rejected. Nute v. Nute, 41 N.H. 60.

III. General reputation, or the reputation of a person in a particular locality, is not admissible for the purpose of showing that he is a competent mechanic, and that he is capable of properly performing any work of art, science, or trade, and the testimony of Sutherland, as to Branden's reputation in that vicinity, as a competent pressman, should have been excluded. Baldwin v. Railroad, 4 Gray (Mass.) 333; Ervingham v. Menon, 2 Brev. (S. C.) 461; 1 Greenl. on Evid. [14 Ed.] sects. 98, 99, 124.

IV. The evidence offered by defendant, tending to show that at the time plaintiff purchased the press, no guaranty was asked by plaintiff, none promised to him, and, therefore, none given, was not objectionable on the ground that it would vary the terms of a written contract. The appearance of the so-called guaranty, on inspection, would require and permit explanation, and explanation is not contradiction; and if the appear ance of the paper is consistent with either of two states of fact, evidence explaining the appearance, or showing the intention, is admissible. Kuntz v. Temple, 48 Mo. 71; Brown v. Bank, 2 Mo. 191.

V. The contract required the plaintiff, within fifteen days after receipt of press, to thoroughly test the same, to give notice...