Crouch v. Morgan
| Decision Date | 23 February 1909 |
| Citation | 116 S.W. 475,135 Mo.App. 611 |
| Parties | CROUCH & SONS, Appellants, v. MORGAN et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Barry Circuit Court.--Hon. F. C. Johnston, Judge.
AFFIRMED.
STATEMENT.--This instruction was given for defendants:
"The court instructs the jury that if they find and believe from the preponderance or greater weight of the evidence in this case that at the time the defendants, Ennis and Morgan signed the notes in question, that Clark, the agent of the plaintiff, told them that the horse was a sure foal-getter and that his colts would be solid color, that they would be either blacks, browns or bays; and if you further find that these statements and representations induced defendants to sign and execute said notes and that they would not have signed them but for said representations; and if you find that said horse was not a sure foal-getter, that he did not get colts of a solid color as represented and that defendants when they found out that the horse was not what plaintiff had represented him, they offered to return what interest they had back to plaintiff, then you will find the issues for defendants."
This instruction was given for plaintiffs:
"The court instructs the jury that if you believe from the evidence that plaintiff in this case was prevented, by acts of defendants, from making any and all representations and warranties made by plaintiff to defendants, good, then your finding must be for plaintiff."
These instructions were requested by plaintiffs and refused:
"The court instructs the jury that under the law and evidence of this case your finding must be for plaintiff for amount of notes and interest.
If the jury believe that the horse was the consideration of the notes and was worth anything, and that defendants have failed to give notice of his defects in a reasonable time to the plaintiff or to return the same, then they are presumed to have acquiesced in the defect and are not entitled to any deduction from the amount of the note.
The court instructs the jury that defendants having set up a breach of warranty as a defense to the notes are precluded from retaining the horse or any interest in the horse, if the horse be of any value, and at the same time defeat the notes and if the jury believe from the evidence that the horse is of any value and further believe that defendants have not returned their interest to plaintiff according to the terms of agreement under which they signed the notes, then your finding must be for plaintiff.
"The court instructs the jury that if they believe from the evidence that the horse was sold to defendants and defendants signed the notes in question under the representation and agreement that the horse was a sure, satisfactory foal-getter and would get colts of black, bay and brown in color, and in the event he did not come up to these representations then defendants were, by July 1, 1906, to return the horse to the barn of plaintiffs at Sedalia, Mo., and pick out another horse of equal value; and the jury further believe from the evidence that defendants did not return the horse to plaintiff's barn by said date, then defendants have acquiesced in the defects in said horse, if any, and are not entitled to any deduction from the amount of the notes."
Judgment affirmed.
Shain & Barnett and Frost & Wear for appellants.
(1) The court erred in giving, over plaintiff's objection defendant's instruction "A." The instruction is not based upon all the evidence bearing upon the issues to which it is directed. The evidence is conclusive that the stallion was to be returned for exchange by July 1, 1906, if not satisfactory. The evidence is conclusive that the stallion was not returned, still the instruction directs a verdict without any requirement of compliance on the part of defendants with this condition of the sale. Willis v Railway, 111 Mo.App. 580; Imboden v. Trust Co., 111 Mo.App. 220. (2) There is no evidence to support the theory presented in the closing of instruction "A" to the effect that defendants could discharge their obligation by offering to return their interest. Where there is no evidence to support a theory presented by an instruction the instruction should be refused. Harrison v. Lakenan, 189 Mo. 581. (3) Instruction "A" for defendant, even under proper pleadings and evidence, would be erroneous in that it directs a verdict for defendant without consideration of reasonableness of time in which offer to return was made. Goodwin Mfg. Co. v. Foundry & M. Co., 115 Mo.App. 382.
C. M. Landis and J. S. Davis for respondent.
OPINIONGOODE, J. (after stating the instructions).
This action was instituted before a justice of the peace on two promissory notes for $ 50 each, one dated Se...
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