Emerson-Brantingham Implement Company v. Simpson

• Decision Date: 14 January 1920
• Citation: 217 S.W. 559,205 Mo.App. 56
• Parties: EMERSON-BRANTINGHAM IMPLEMENT COMPANY, a Corporation, Respondent, v. J. B. SIMPSON, Appellant
• Court: Missouri Court of Appeals

217 S.W. 559

205 Mo.App. 56

EMERSON-BRANTINGHAM IMPLEMENT COMPANY, a Corporation, Respondent, v. J. B. SIMPSON, Appellant

Court of Appeals of Missouri, Springfield

January 14, 1920

Appeal from Mississippi County Circuit Court.--Hon. Frank Kelly Judge.

Cause reversed and remanded.

Haw & Brown for appellant.

(1) The court erred in sustaining objections to the testimony of defendant, including the testimony tending to show his inexperience with, and lack of knowledge of tractors. Defendant's answer alleged that the conduct of plaintiff constituted fraud, and all evidence tending to show what the agreement really was and the contemporaneous statement was admissible, 17 Cyc. 687 (B) and 701 (H); Stone v Barrett, 34 Mo.App. 15; 13 C. J. 396 (sec. 306). (2) If a thing is sold under warranty and will not do the work it was warranted to do, the purchaser can recover. Machine Company v. Gasperson, 168 Mo.App. 558, l. c. 574-575; Brown v. Weldon, 94 Mo. 564; Compton v Parsons, 76 Mo. 455; Keystone Imp. Co. v Leonard, 40 Mo. 477; 1 Beach on Corporations (1 Ed.), sec. 261.

Russell & Joslyn for respondent.

(1) Appellant failed to give the respondent notice according to the terms of the contract, and, therefore, was not entitled to show a failure of warranty. Nicholas, Shepherd & Company v. Rhoadmann, 112 Mo.App. 299; Machine Company v. Wells, 182 Mo.App. 50; Nicholas, Shepherd & Company v. Larkin, 79 Mo.App. 264. (2) The special contract of warranty imposing conditions precedent took the place of a like or inconsistent implied warranty, and appellant could not plead and prove failure of the implied warranties and thus escape the performance of conditions precedent contained in the written contract. Boyer v. Neal, 50 Mo.App. 26-35; Wood Machinery Company v. Bobbst, 56 Mo.App. 427; Machine Company v. Gasperson, 158 Mo.App. 571. (3) The written contract is conclusively presumed to merge all prior negotiations and to express the final agreement of the parties; therefore, all of the evidence offered by the appellant in support of the third paragraph of his amended answer was properly excluded. Crim v. Crim, 162 Mo. 544; Bank v. Wells, 98 Mo.App. 573; Bank v. Birsch, 154 Mo.App. 631; Tracy v. Union Iron Works Company, 104 Mo. 193; Union Breeders' Company v. Wright, 134 Mo.App. 717; Bradford v. Wright, 145 Mo.App. 623; Zeller v. Ransom, 140 Mo.App. 220.

BRADLEY, J. Sturgis, P. J., concurs. Farrington, J., dissents.

OPINION

BRADLEY, J.

Plaintiff sued to recover $ 2100 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, Illinois, March 30, 1916, after he had seen and inspected the machinery. The machinery was to be delivered to defendant at Belmont, Missouri, 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 the 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 form 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 mach 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 wasn't pulling as many plows on his machine; that he timed defendant's tractor, and it took forty 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 fourteen-inch plows; it pulled in light soil and black soil both. I 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 fourteen-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 twenty, 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 moved 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 had a tractor like defendant's, and who know for what purpose the tractor was intended. If such evidence is not competent then that part of the contract which warrants the tractor to do as good work as any other machine of the same size, manufactured for a like purpose would have no significance. Defendant...