Daugherty v. Robert Burgess & Son

• Decision Date: 04 June 1906
• Citation: 118 Mo. App. 557,94 S.W. 594
• Court: Missouri Court of Appeals
• Parties: DAUGHERTY et al. v. ROBERT BURGESS & SON et al.

94 S.W. 594

118 Mo. App. 557

DAUGHERTY et al. v. ROBERT BURGESS & SON et al.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. PARTNERSHIP—EXISTENCE—EVIDENCE—SUFFICIENCY.

In an action by buyers of a horse for breach of a warranty, evidence held insufficient to show that certain defendants were partners.

2. SALES—WARRANTIES—ACTION FOR BREACH —EVIDENCE—QUESTION FOR JURY.

In an action by buyers of a horse for breach of a warranty, evidence held to justify submission to the jury of the question whether a certain written form of warranty was given, or whether this form was superseded by a verbal warranty given later.

3. PRINCIPAL AND AGENT—RATIFICATION.

Where one of several persons, who had associated themselves together for the purchase of a horse, concluded the transaction and accepted a verbal warranty, the act of the other purchasers in joining in a suit for breach of the warranty was a ratification of the act of the person who concluded the sale.

4. SALES—ACTION FOR BREACH OF WARRANTY —PARTIES.

Where several persons associated themselves together for the purchase of a horse, and gave their joint notes for the price, they were entitled to join in an action for breach of a warranty concerning the horse.

5. PARTIES—MISJOINDER—FORM OF OBJECTION.

Under Rev. St. 1899, § 598, providing that defendant may demur for misjoinder apparent on the face of the petition, an objection for misjoinder of parties plaintiff apparent on the face of the petition is waived, if not taken by demurrer.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Action by Amos Daugherty and others against Robert Burgess & Son and another. From a judgment for plaintiffs, as against C. H. Dixon, defendant, but in favor of the defendant first named, plaintiffs and Dixon appeal. Affirmed.

C. C. Bigger and J. M. Davis & Sons, for plaintiffs. Barnes & Magoon, Frank Sheetz & Sons, and U. A. House, for defendants.

BROADDUS, P. J.

This is a suit brought by the appellants, Amos Daugherty et al. against Robert Burgess and Charles Burgess, partners doing business under the firm name of "Robert Burgess & Son," and one C. H. Dixon, to recover damages for the alleged breach of the warranties in the sale of a stallion. The cause was tried at the May term, 1905, of the circuit court of Livingston county, Mo., before the court and a jury. At the close of all the evidence the court, over the objection of plaintiffs, sustained a demurrer to the evidence, as to Robert Burgess and Charles Burgess, but submitted the issues to the jury as to defendant C. H. Dixon. Under the peremptory instruction of the court, the jury returned a verdict for the defendants Robert Burgess and Charles Burgess, but found for plaintiffs as against defendant C. H. Dixon. Plaintiffs appeal from the action of the court in sustaining said demurrer to the evidence, as to Robert Burgess and Charles Burgess, and rendering judgment for them, upon the verdict of the jury, returned in pursuance of said demurrer to the evidence. The defendant Dixon also appealed from the judgment rendered against him.

The issues presented by the pleadings may be briefly stated as follows: Plaintiffs, who are farmers and stock raisers residing at or near the town of Sumner, Mo., allege that, about the 2d day of October, 1902, defendant C. H. Dixon for himself, and as agent for his codefendants, offered to sell to plaintiffs an interest in an imported French draft stallion, which he represented they then owned, at and for the price of $2,200; that said Dixon for himself, and as the agent of his codefendants, stated and represented to plaintiffs that, if they would purchase an interest in said horse to an amount as follows: Amos Daugherty, $100; G. I. Taylor, $200; W. A. Homan and J. S. Nelson, together, $100; Lewis Lisle, $200; Wm. Fulbright, $200; John West, $200; T. J. Thompson, $200; Billie McKee, $200; David Barnhart, $200 Willie Eckles, $200; and D. S. Foster, $200 (making a total of $2,000)—that one Williams, a farmer residing near said town of Sumner, would purchase the remaining interest of $200; that said Dixon for himself, and as agent of his codefendants, further represented that said stallion was an imported French draft stallion, perfectly sound and in good health, well broke, and with no bad habits, and that they would so warrant him, and that they would further warrant that said stallion would get with foal 60 per cent. of regular breeding mares which might be bred to him; that desiring to purchase said stallion for breeding purposes only, which fact was known to said Dixon, and relying upon the representations as to the quality of said horse, and that said Williams would purchase the remaining interest of $200 in said horse, they verbally agreed to purchase an interest in said horse as above stated; that it was agreed that plaintiffs, Dixon, and said Williams would meet in said town of Sumner on October 2, 1902, when plaintiffs and said Williams would execute joint notes to said Dixon for the purchase price of said horse, and then said horse should be delivered to plaintiffs and said Williams; that on October 2, 1902, they met, when plaintiffs executed jointly to said Dixon three notes, one for $733, due August 1, 1904, one note for $733, due August 1, 1905, and one note for $734, due August 1, 1906, said notes representing the purchase price of said horse; that, after said notes had been so executed by plaintiffs, they were turned over to said Dixon for the purpose of having them signed by said Williams; that thereupon said Williams refused to sign said notes or purchase an interest in said horse, and thereupon plaintiffs demanded the return of their said notes and refused to consummate the purchase of said horse; that said Dixon then proposed to plaintiffs that, if they would go on and consummate the purchase of said horse without said Williams, he would indorse on said notes a credit of $200, and would hold them and not transfer them before maturity, and that defendants would warrant said horse to be an imported French draft stallion, perfectly sound, well broke, with no bad habits, and would get with foal 60 per cent. of regular breeding mares which might be bred to said stallion during the season of 1903, and that, if said stallion failed to fulfill said warranty in all respects, defendants would receive said stallion back and surrender up to plaintiffs their said notes; that, relying upon said verbal representations and warranties, they purchased said horse; that soon after said horse was so purchased, and before the maturity of said notes, said Dixon assigned, transferred, and delivered said notes, for value, to the Chillicothe Savings Association without indorsing thereon a credit of $200; that plaintiffs, before the institution of this suit, paid said notes, together with all interest thereon; that during the season of 1903 a large number of regular breeding mares were bred to said horse in a prudent, careful manner, but said horse failed to get 60 per cent. of them with foal, and failed to get any of said mares with foal; that said stallion wholly failed to comply with the warranty under which he was sold, and was wholly worthless for breeding purposes, or any other purpose, and claimed damages in the sum of $2,850. The defendants Robert Burgess and Charles Burgess, by their separate answer, admit that they are partners, but deny that their codefendant, Dixon, is a partner of theirs, or that they were in any way parties to the sale of said horse—deny that in the sale of said horse said Dixon was their agent. They set up that said stallion was sold to plaintiffs by Dixon under a written guaranty, signed by the defendants Robert Burgess and Charles Burgess, and then allege that plaintiffs wholly failed to comply with said written guaranty on their...