Emerson-Brantingham Implement Co. v. Simpson

• Decision Date: 14 January 1920
• Docket Number: No. 2444.,2444.
• Citation: 217 S.W. 559,205 Mo. App. 56
• Parties: EMERSON-BRANTINGHAM IMPLEMENT CO. v. SIMPSON.
• Court: Missouri Court of Appeals

217 S.W. 559

205 Mo. App. 56

EMERSON-BRANTINGHAM IMPLEMENT CO. v. SIMPSON.

No. 2444.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Suit by the Emerson-Brantingham Implement Company against J. B. Simpson. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Haw & Brown, of Charleston, for appellant.

Russell & Joslyn, of Charleston, for respondent.

BRADLEY, J.

Plaintiff sued to recover $2,100, the purchase price of a Big Four 20 horse power gasoline tractor and other machinery. The contract was in the form of a written order Signed by defendant. The defense was that the written order did not contain the whole agreement, and a breach of the warranty contained in the agreement. Defendant also interposed a counterclaim for freight paid and expenses incurred in attempting to operate the tractor. The cause was tried to a jury, and resulted in a verdict for plaintiff for the amount sued for, and for defendant on his counterclaim, and for some machinery returned, and defendant prosecutes this appeal.

The contract is lengthy, and we will refer only to those parts that are material here. Defendant sets up alleged misrepresentations. inducing him to sign the contract, but there is no evidence to support these allegations. The cause must therefore be determined by the contract itself and the record as appears here relative thereto, independent of any prior oral promises and representations. Defendant signed the contract or order at Peoria, Ill., March 30, 1916, after he had seen and inspected the machinery. The machinery was to be delivered to defendant at Belmont, Mo., and by the contract he was to pay $100 cash on delivery and give his notes for the balance. `The contract provided that in the event defendant failed to accept the machinery when tendered at place of delivery, and make settlement therefor in accordance with its terms at the option of plaintiff, the contract would stand as the purchaser's written obligation, and would have the same force and effect as notes and mortgages for all sums not paid in cash. Plaintiff shipped the machinery to defendant at Belmont, and he refused to accept it, and plaintiff exercised its option and sued for the purchase price.

The decisive issue, when the alleged oral representations are eliminated, is confined to the written warranty, which is as follows:

"The company warrants the machinery ordered herein to be well made, of good material, and with proper use and management to do as good work as any other machine of the same size, manufactured for a like purpose."

Plaintiff's agents, when defendant refused to accept the machinery, unloaded the same from the car, set it up, and carried it to defendant's farm, and put in two or three days trying to make the tractor satisfactory to defendant, but, not being successful, they gave up trying to make the tractor work to the satisfaction of defendant, and left it at his premises. Defendant refused to accept the machinery, because of his understanding that plaintiff was to set it up and make it work in accordance with the alleged representations made before he signed the contract. The contract provided that any act of any agent of plaintiff would not constitute a waiver of any stipulation in the warranty. Defendant's complaint is that the tractor would not pull four plows in his land on high speed, and he sought to show that the tractor did not do as good work as other machines manufactured for a like purpose. Defendant was not familiar with tractors, and sought to make his proof by witnesses who had had experience with tractors; but the court confined the evidence to such narrow limits that he was practically precluded from making any proof at all. The court directed a finding for plaintiff, but left the amount to the jury; but, as there was no evidence of consequence admitted tending to establish the defense of a breach of warranty, the instruction was, for all practical purposes, peremptory as to the amount.

Defendant put C. E. French on the stand, and he testified that he had an Emerson-Brantingham Big Four 20-35 tractor, same as defendant's, and that he had observed other tractors at work. Then the witness was asked to state whether the `Emerson-Brantingham 20-35 would do as much work as any other machine manufactured for like purpose. Objection was made that the evidence of this witness was incompetent unless he knew about defendant's tractor, and the court sustained the objection. This witness was asked for what purpose his tractor was made, and an objection was again sustained. The witness stated that he had seen the Titan, a smaller tractor, in operation. Then he was asked if the Titan would do as good work under similar conditions as the Emerson 20-35. Objection was made to this, and was sustained on the ground that the proper foundation had not been made. Defendant then endeavored to prove by this witness the comparative work of the Titan 10 horse power with the Emerson 20 horse power, and an objection was sustained. George Barrett, a witness for plaintiff, testified that he had a 9-16 Mogul tractor, and that he had done a good deal of plowing with tractors; that he saw defendant's tractor while plaintiff's agents were operating it on defendant's farm, and that it was not going as fast as the usual rate of speed for tractors; that it went about half as fast as his machine, but that he was not pulling as many plows on his machine; that he timed defendant's tractor; and it took 40 minutes to go about a quarter of a mile. The evidence shows that those attempting to operate defendant's tractor used five plows part of the time and four plows part of the time, but it does not appear how many plows they were using when the witness timed the tractor. The plows on defendant's tractor were the same size as the plows on the witness' tractor. This witness testified that his tractor went about twice as fast as defendant's, and on motion this was stricken out. This witness further testified:

"My machine pulled three 14-inch plows; it pulled in light soil and black soil both. E have used my tractor in the same kind of land where the plowing was going on on Mr. Simpson's land. The tractor that was on his land had 14-inch plows, the same size as mine. My tractor is 8 horse power at the drawbar, and 16 at the belt. The power of the tractor in question was 20, I believe, at the drawbar. I am not positive what it was at the belt. I plowed black land, and my tractor went about as fast one place as another. My tractor hasn't got but one speed. It is reasonably fast, I guess. When I saw this tractor running, they run it part of the time on high and part on low. Q. How did your one speed compare with the high speed of the tractor in question? A. Well, it went faster.

"Judge Russell: I object to that, and move that it be stricken out, because it is not shown from the testimony that they were geared at the same speed.

"The Court: Objection sustained."

Defendant saved his exceptions to all adverse rulings.

It was competent for defendant to show for what purpose his tractor was intended, and he could show this by a witness who...