Emerson-Brantingham Implement Co. v. England

• Decision Date: 17 June 1916
• Docket Number: No. 1600.,1600.
• Citation: 186 S.W. 1181
• Parties: EMERSON-BRANTINGHAM IMPLEMENT CO. v. ENGLAND et al.
• Court: Missouri Court of Appeals

186 S.W. 1181

EMERSON-BRANTINGHAM IMPLEMENT CO. v. ENGLAND et al.

No. 1600.

Springfield Court of Appeals. Missouri.

June 17, 1916.

Appeal from Circuit Court, Barry County; Carr McNatt, Judge.

Action by the Emerson-Brantingham Implement Company against W. England and another, who counterclaimed. From a judgment for defendants on their counterclaim, plaintiff appeals. Reversed and remanded.

George & Wear, of Cassville, and Wright Bros., of Springfield, for appellant. J. S. Davis, of Cassville, and D. H. Kemp, of Monett, for respondents.

ROBERTSON, P. J.

This appeal involves two actions consolidated and tried together. The first one contained four, and the second three causes of action, which latter ones we shall refer to as the fifth, sixth, and seventh causes of action. The first, second, third, and fifth causes of action were based upon promissory notes executed by the defendants to Reeves & Co., a corporation, and by it alleged to have been indorsed to the plaintiff. These notes were given in part payment for the purchase price for a threshing machine and a 16 horse power traction engine bought from said Reeves & Co. The fourth and sixth causes of action are based upon two separate promissory notes executed by defendants to plaintiffs in payment for a feeder for the threshing machine. The seventh cause of action is for belt, pulley, and hose alleged to have been sold defendants by the plaintiff. Defendants by the answer admitted the execution of the notes, and in defense of those given for the thresher relied upon alleged breaches of warranty made by said Reeves & Co. when it was purchased. The answer admitted the execution of the note for the feeder, and as a defense thereto alleged that the plaintiff unlawfully and wrongfully took and converted it and the said engine to their own use. Defendants sought to set up a counterclaim for the alleged conversion and for damages on account of loss of profits on threshing and for expenditures for labor in efforts to repair the separator. The warranty relied upon was written and provided:

That the engine, thresher, and equipments were "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; but, if inside of six days from the day of its first use the said machinery fails to fill said warranty, written notice shall be given Reeves & Co. by registered letter, and also written notice to the local agent from whom the same was purchased, stating wherein it fails to fill the warranty, and, if it be of such a nature that remedy cannot be suggested by letter, a reasonable time shall be allowed to get to the machinery to remedy the defects, if any there be, and an opportunity offered for a trial thereafter; the purchaser rendering necessary and friendly assistance. Defects or failures in one part shall not condemn any other part or attached machinery, and, if after a fair opportunity to remedy a defect the part or parts containing such cannot be made to fill the warranty, that part which fails shall be returned immediately by the purchaser to the place where it was received, with the option in the company either to furnish another machine or part in the place of the machine or part so returned, or credit the settlement with same."

The reply filed by plaintiff alleged the failure of defendants to return the machinery as above provided, and also alleged the foreclosure of the chattel mortgage.

A jury trial resulted in a verdict for the defendants "on plaintiff's cause of action" and for the defendants on "their counterclaim and assessing their damages at the sum of $1,000 in excess of the amount sued for." The plaintiff has appealed.

It is insisted in behalf of defendant that, since there is no testimony tending to prove that the notes made to Reeves & Co. were indorsed to or owned by the plaintiff, the judgment must be affirmed. The answer of the defendants alleges that:

"Plaintiff herein, by written agreement with and assignments from said Reeves & Co. became came the successor of said Reeves & Co., and thereby assumed all the rights and became subject to all the liabilities of said company to these defendants."

This allegation is a sufficient admission of the ownership of the notes by plaintiff to dispense with the proof of indorsement to and ownership by plaintiff.

In June, 1912, the engine and thresher were delivered to the defendants, and in the next month they began threshing. They claim to have had trouble with the machine from the beginning. They wrote to the Reeves Company, and a man was sent by that company who, with the agent who sold the machine, went to the place where they were threshing and undertook to make some repairs thereon. The repairs were not satisfactory to the defendants, and one of them told the party if he could not make the machine fill the guaranty he was ready to return it to the place from whence he received it, as is provided for in the contract of sale, and that then the agent insisted upon him keeping the machine during the remainder of that season, and assured him that before another year the company would fix it.

The daily capacity of such a machine as the one defendants purchased, if in proper running order, was shown by the testimony of the defendants to be 800 or 900 bushels. One witness for them placed it at from 1,200 to 1,800 bushels. The testimony as to what the machine actually did is disclosed only by the testimony offered by the defendants, which is considerably conflicting. The defendants testified that the average for the season of 1912 was 500 or 600 bushels per day. The threshing season lasts about 30 days, and during the season of 1912 they threshed about 18,000 bushels.

One of the defendants testified that in April, 1913, he wrote about the promised repairs, and that in response thereto a man visited them and made some repairs on the separator and left, and that the machine worked no better thereafter; that they wrote further concerning the matter, but received no reply. The testimony is to the effect that the machine did not work any differently in 1913, but during the season of that year that they threshed about 20,000 bushels, and in the latter part of July took it to the place from which it was received and left it. The threshing season does not begin, as disclosed by the testimony, until the 1st of July. One witness in behalf of defendant stated that they threshed about 1,046 bushels of wheat for him in about three-fourths of a day. One of the defendants testified that they charged three cents per bushel for threshing, and that 55 per cent. of that amount was profit. The witness who testified to the high daily capacity of an ordinarily well equipped machine of that kind did not see this machine in 1913.

The damages which the defendants claim to have suffered by reason of the failure of the machine to come up to the warranty was the loss of contracts which they would otherwise have received but for the bad reputation which the machine acquired. Over the objections of the plaintiff several witnesses were placed upon the stand and testified that they refused to give the defendants their contract for threshing because of the unfavorable opinion they had of the machine. Several farmers would organize themselves into associations for the purpose of hiring the thresher and doing the work. The wheat and oats owned by these individuals were called "runs," and defendants claimed to have lost several of these on account of the bad reputation which their machine had. There is no testimony which we can find in the record which gives any proper information as to the number of bushels of wheat and oats which defendants lost the threshing of by reason of losing these "runs." We are of the opinion, and so hold, that there was no testimony offered which justified the submission to the jury of the question of any damages arising by the reason of losing said work. At one place in the record there is testimony by one of the defendants shown, and where he stated that he has no idea how many contracts he lost in 1912, but that he expected there were 6,000 or 7,000 bushels. In answer to the question as to how many customers they lost in 1913, he stated:

"I could not tell just how many there were— a good many; I don't know how many; I couldn't very well say. Of course, I could make a guess, but guesswork don't go."

He also testified:

"We did not miss any in 1912 on...