Detjen v. Moerschel Brewing Co.

• Decision Date: 12 June 1911
• Citation: 157 Mo. App. 614,138 S.W. 696
• Parties: DETJEN v. MOERSCHEL BREWING CO.
• Court: Missouri Court of Appeals

138 S.W. 696

157 Mo. A. 614

DETJEN v. MOERSCHEL BREWING CO.

Kansas City Court of Appeals. Missouri.

June 12, 1911.

1. SALES (§ 269)—CONTRACTS—WARRANTY.

A buyer, paying a good price, takes the risk of quality and condition, unless he protects himself by a warranty, or unless there has been a false representation, fraudulently made by the seller, and mere praise of the subject of sale by the seller imposes no obligation on him as a warrantor by implication.

2. SALES (§ 260)—"WARRANTY"—ACTS CONSTITUTING.

To constitute a warranty by a seller of quality and condition, the warranty need not be in writing, nor need the word "warranty" be used; but it is sufficient if there is a representation of the state of the thing sold, or a direct, positive, unequivocal, and express affirmation of its quality and condition, forming a part of the consideration of the sale, and disclosing an intention to make good the quality of the thing sold, and so relied on by the buyer.

3. SALES (§ 261)—WARRANTY—ACTS CONSTITUTING.

Where the defect in an article is not discoverable on ordinary inspection, representations of soundness by the seller, with intent to induce the buyer to rely thereon, and the buyer's acceptance thereof, constitute a warranty.

4. SALES (§ 261)—WARRANTY—ACTS CONSTITUTING.

Where the defect in an animal sold at auction was latent, and the secretary of the seller, with knowledge of its existence, gave positive assurance of the soundness of the animal, under circumstances disclosing an intent to deceive bidders into paying a sound price for an unsound animal, the representations amounted to a warranty when acted on by a bidder.

5. WITNESSES (§ 323)—IMPEACHMENT—RIGHT OF PARTY TO IMPEACH OWN WITNESS.

The rule that a party may not impeach the credibility of his own witness does not apply, where a party is taken by surprise by the evidence of his witness, in which case the witness may be interrogated as to inconsistent statements previously made, to refresh his recollection and induce him to correct his testimony, and does not prevent a party who is surprised by the hostility of his witness to show, in the trial court's discretion, why the witness was called, though in so doing the witness may be discredited.

Appeal from Circuit Court, Pettis County.

Action by P. Detjen against the Moerschel Brewing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sangree & Bohling, for appellant. Orville M. Barnett, for respondent.

JOHNSON, J.

This action is to recover damages for breach of warranty and for fraud practiced in the sale of a mule. Answer, a general denial. Plaintiff recovered a verdict and judgment in the circuit court, and defendant appealed.

The sale of the mule was at a public auction conducted by defendant on its farm in Pettis county. The secretary of the defendant company, Mr Urban, was present during the sale. The mule in question was small, poor, and afflicted with a disease of the kidneys, of which fact the evidence of plaintiff tends to show Mr. Urban had knowledge, though he denies having had such knowledge at the time. The mule had been doing heavy work on the farm, and its poor condition could be and was ascribed by defendant to overwork. The bidding on the animal was languid, and stopped at $75, whereupon the auctioneer turned to Urban and inquired, "What is the matter with this mule?" and received the reply, delivered in the hearing of the bidders, that the mule was "straight and all right." Bidding was resumed, and increased to $122, at which price the sale was made to plaintiff. It appears that plaintiff relied on the statement that the mule was "straight and all right." He received and paid for the mule, and shortly after the animal died of its disease, which was not an obvious but a secret malady.

The demurrer to...