Crenshaw v. Looker
| Decision Date | 22 December 1904 |
| Citation | 84 S.W. 885,185 Mo. 375 |
| Parties | CRENSHAW, Appellant, v. LOOKER |
| Court | Missouri Supreme Court |
Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.
Reversed and remanded (with directions).
William A. Dudley and Martin & Woolfolk for appellant.
(1) There is no implied warranty (except as to title) of a machine sold by one dealer or manufacturer. Benjamin on Sales (Bennett's Ed.), sec. 657; Tiedeman on Sales, sec. 190; Anthony v. Potts, 63 Mo.App. 517. (2) If the property was of any value for any purpose whatever it must have been returned to defeat plaintiff's cause of action and such return must be prompt. Brown v. Weldon, 27 Mo.App. 251, 99 Mo. 564; Tower v. Pauly, 51 Mo.App 75; Mfg. Co. v. Magee, 42 Mo.App. 314; Cahn v Reid, 18 Mo.App. 115; Kirk v. Seeley, 63 Mo.App. 262; Rubber Co. v. Rubber Co., 74 Mo.App. 266. (3) There is no implied warranty in those cases where the buyer selects the article or has opportunity for inspection, or where old or second-hand machinery is sold. Bragg v. Morrell (Vt.), 34 Am. St. 102; 5 Wait, Actions and Def., p. 563; Norris v. Rimstedler, 90 Mo.App. 626. (4) The burden was on defendant to show conclusively that all the property was worthless, and not on plaintiff to show the contrary. Branson v. Turner, 77 Mo. 495; Roth v. Wire Co., 94 Mo.App. 270; Thumnel v. Dukes, 82 Mo.App. 53; McCormick v. Brady, 67 Mo.App. 292.
Norton, Avery & Young for respondent.
(1) We care nothing about the position taken by appellant's counsel as to implied warranty, and as to whether it applies to the second-hand machine, or to cases where an express warranty is pleaded, as in this case. Here the plaintiff pleads an express warranty and then pleads that there was a total failure or breach of the warranty; offers proof to the court on this issue, and we think sufficient proof for the court to base a finding on, that there was a warranty and a breach of that warranty. Then, if this be true, even though the court may have used the terms "warranty" and "failure of consideration" interchangeably, as they are capable of being used, and are often used both by the bar and the judiciary, still the court was justified in the finding. The evidence abundantly shows the warranty, the breach of the warranty, the worthlessness of the machinery only for old iron, the failure of the plaintiff to furnish tools or belts, and the earnest endeavor of the defendant to use the machine as he contemplated, and if possible to repair and use and pay for the same, and his utter failure to do so. And all these facts the court includes in this finding. Yet the plaintiff seeks to reverse this finding because he says that the evidence shows that the machinery was of some value, that is, at least the value of old iron. Our courts have had this come before them a number of times, and have universally decided in direct opposition to the contention of appellant's attorney. Brown v. Weldon, 99 Mo. 564; s. c., 27 Mo.App. 251; Comings v. Leody, 114 Mo. 454; Arnold v. Wilt, 86 Ind. 367. (2) Counsel for appellant contend that the answer does not set up the defense of failure of consideration, and therefore the court was not justified in finding a failure of consideration. We think the counsel has misconstrued the terms of defendant's answer. He pleads that the notes were given for the purchase price of the machine, belts, tools, etc., which the plaintiff was to furnish him, and he pleads that the machinery, tools, belts, etc., furnished him by the plaintiff under this contract, and as a consideration for these notes, were entirely worthless. This certainly would amount to the pleading of a failure of consideration. Then, again, there is a general denial in the answer, and under the repeated decisions of our Supreme Court the issue of failure of consideration is tendered by a general denial, and this is so decided in the case of Brown v. Weldon, supra.
Plaintiff sued in ejectment for a lot in the town of Elsberry. The lot had belonged to the defendant, who executed a deed of trust conveying it to a trustee to secure two notes for $ 250 each, payable to the plaintiff; when the notes became due, they were not paid, and the trustee sold the property under the terms of the deed of trust; the plaintiff became the purchaser at the trustee's sale for $ 225, and received the trustee's deed therefor. Those facts, together with the fact that the rental value of the property was $ 5 or $ 6 a month, were shown by the plaintiff's evidence at the trial.
In answer to the plaintiff's ejectment petition, the defendant filed a general denial, and an affirmative pleading in the nature of a bill in equity to redeem, which for convenient reference and for want of a more appropriate name, we will call a cross-bill, and which in substance was as follows:
After admitting the execution of the notes and the deed of trust, the sale thereunder and the purchase of the lot by the plaintiff, it is averred that the defendant and one Smith purchased of plaintiff a grain threshing outfit, in payment of which the notes mentioned were given, together with a chattel mortgage on the machine purchased and the deed of trust on the lot in question to secure the notes. That the only purpose defendant and Smith had in making the purchase was to use the machine in threshing and separating wheat, oats, etc.; that the plaintiff knew that fact, and warranted it capable of doing that work satisfactorily if properly operated, requiring only slight repairs in the woodwork at the top of the separator, which repairs the defendant undertook to make and afterwards did make. That the plaintiff further represented that in the previous year he had threshed over 20,000 bushels of wheat with the machine, and if properly operated it was capable of threshing, cleaning and separating 1,200 or 1,500 bushels of wheat a day; that it had not been used exceeding five or six years; that plaintiff agreed to supply good belts, pipes, wrenches, oil cans and all other necessary tools before the threshing season of that year, and when defendant and Smith were ready to start the machine the plaintiff would, upon being notified, go with them and start it to work in good order.
That it was upon that warranty the purchase was made and the notes and deed of trust executed.
But that the machine "was wholly worthless for the purpose for which it was bought by defendant, and was wholly unfit and incapable of doing said work as a threshing machine;" that plaintiff, although notified, refused to assist in starting the machine and refused to furnish the belts, pipes, wrenches, oil cans, etc., necessary to operate it; that defendant employed a skillful man to operate it, but he could not do so, and employed a machinist to repair it, but it was so worthless it was beyond repair; that after giving it a fair trial and finding it totally unfit for use, defendant notified the plaintiff thereof and solicited him to come and repair it but "he refused to take any action or steps in the matter;" that after ineffectual efforts to operate it, defendant again "notified the plaintiff of these conditions and offered to return said outfit, and that plaintiff refused to permit him to do so and refused to receive said machine, and thereupon defendant abandoned the same and so notified plaintiff and has not had possession thereof since." The prayer is that the court hear evidence and if it should find that the facts stated by defendant are true that the plaintiff be required to bring the notes and deed of trust into court to be cancelled and satisfied on the record and the title to the lot be reinvested in the defendant. But that if the court should find that defendant purchased the machine under the warranty mentioned and that whilst it was not capable of doing the work for which it was bought, yet it had value for other purposes, and that defendant did not offer to return it to the plaintiff, then that an account be taken charging defendant with the value that it may be found the machine possessed, within the contract price, and giving him credit for the outlays he was put to in the effort to make it work, and if a balance should be found in favor of plaintiff that defendant be allowed a reasonable time in which to pay the amount and redeem the land. The plaintiff's reply put the defendant's equity case at issue.
On the trial of the case made in the cross-bill the evidence for the defendant was to the following effect:
Smith testified that he and defendant, hearing that plaintiff had a second-hand threshing outfit for sale, and they intending to go into the business of threshing grain for farmers, went to see him about it. Plaintiff took them to a shed where the machine was and showed it to them. They noticed that it looked badly on the outside, but he said that that was owing to the fact that it had stood out one winter in the weather but that it was all right inside. He said it had threshed 20,000 bushels of wheat the year previous, and he would guarantee it to do it again; that it would thresh as good as anybody's machine. He left them at the shed and went off to milk his cows, they remained there twenty minutes, may be an hour, but made no very close examination. In their talk with the plaintiff at the shed they told him that they would go and look at the engine and if after looking at it they concluded to make the purchase they would drop him a card when they went back to Elsberry and so notify him. The engine to run the machine was at that time running a sawmill at Whiteside's place, and they went there to examine it, but when they got there the engine had steam on and they made very little examination of it. It was noon and the men were...
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