Fabick Bros. Equipment Co. v. Leroux

• Decision Date: 14 February 1964
• Docket Number: No. 8183,8183
• Citation: 375 S.W.2d 887
• Parties: FABICK BROTHERS EQUIPMENT COMPANY, a corporation, Plaintiff-Appellant, v. James H. LEROUX, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 887

375 S.W.2d 887

FABICK BROTHERS EQUIPMENT COMPANY, a corporation, Plaintiff-Appellant, v. James H. LEROUX, Defendant-Respondent.

No. 8183.

Springfield Court of Appeals, Missouri.

Feb. 14, 1964.

Motion for Rehearing or Transfer to Supreme Court Overruled

March 5, 1964.

Hyde, Purcell & Wilhoit, George R. Wilhoit, Jr., Poplar Bluff, for plaintiff-appellant.

Byron Kearby, Poplar Bluff, for defendant-respondent.

RUARK, Presiding Judge.

This is an appeal from a judgment based on the warranty of a Cat which couldn't hold its water.

Plaintiff Fabick Brothers Equipment Company sold to defendant James H. Leroux 'one used Cat.' (we understand this is the common, abbreviated, and popular term for a caterpillar tractor) 'W/Hyd Dozer,' with equipment including 'W/Cat #46 Hyd. Controls' and a 'Cat. 6A Angle dozer,' at a price of $12,412.80. Taken in exchange was a 'Farmall M. Tractor' and 'Henry Back Hoe' at an agreed price of $3,500. Leroux executed an installment note (including time payment charges of $1,069.44) in the amount of $9,982.24. Fabick Brothers Equipment then sold the note 'without recourse' to Fabick Employees' Profit Sharing Plan. In time Fabick Employees' etc. (assignee) repossessed the Cat and dozer, sold it, and sued for deficiency. At the same time, Fabick Brothers Equipment (seller) brought suit against Leroux for the sum of $507.12, which sum it claimed represented the amount of an unpaid check given it by Leroux. It alleged that $500 of said amount had been paid over to Fabick Employees' etc., assignee, on the note, and the $7.12 was for some service charge on the machine. In the last mentioned case, Leroux answered, admitting that he owed the $7.12, and counterclaimed for breach of warranty in the sale of the Cat. Both cases were tried to the court on the same evidence. Judgment was rendered in favor of Fabick Employees' etc., assignee, on the deficiency in the sum of $1,671.90. On the suit by Fabick Brothers, seller, judgment was rendered for plaintiff on its claim in the sum of $7.12 and in favor of defendant on his counterclaim in the amount of $2,500. Fabick Brothers appeals from this last mentioned judgment.

Defendant was in the business of moving dirt. He had been using a tractor with a back hoe machine but was not familiar with a caterpillar dozer of the type here involved. He dealt with a Mr. Hale, a salesman at plaintiff's Sikeston shop building. He testified that Hale showed him the machine. It was newly painted and Hale told him it was rebuilt, reconditioned, 'and just had been through it and done everything up in perfect shape'; that it was 'reconditioned throughout,' in 'good condition, ready to work and guaranteed to work.' 'It was guaranteed for one hundred and fifty working hours.' Subsequent to that conversation, defendant signed a printed form purchase order, which described the equipment and thereafter recited that 'Used Equipment sold 'AS IS' unless specifically warranted under Paragraph 7 on the Reverse side hereof.' Paragraph seven on the reverse side contained disclaimers of liability for personal injuries or for any damage resulting from 'any alleged failure of said machine to operate, nor for any implied warranties. Any used or second hand equipment included in this order is sold without any warranty whatsoever, express or implied (except that the seller warrants title), unless said warranty is set forth in full in the space next following and is initialed by both of the parties hereto.' ¹ In the space below was the following:

'Sold with 150 hr. warranty. Chas. Hale

James H. Leroux'

In further paragraphs was set forth a warranty expressly limited to new machines. This new machine warranty called for replacement of parts defective in material or workmanship, a manufacturer's warranty. The order was signed on June 19, 1958, by 'James H. Leroux, Purchaser,' and 'Fabick Bros. Equipment Co. By: Jos. G. Fabick, Sales Manager.'

Delivery was made about June 24. Defendant hired an experienced Cat operator and commenced operation leveling ground and digging ditches about June 25 or 26. After the first two days' operation, trouble began. The Cat developed an elephantine thirst. It would heat up and the driver would have to go to water and refill the radiator. This happened several times a day and with increasing frequency. Sometimes it required as much as four or five gallons to refill the radiator. Within a few days, Leroux complained to the seller, and plaintiff's mechanics came to work on it. The first time the mechanic worked on it for two days. The machine was, of course, 'down' or out of service during that period. Defendant says that after it was 'patched up' it ran for another week, but from then on it was a process of working a while, making trips to a water course or well and refilling the radiator, and then 'down again' while a mechanic or mechanics from Fabick Brothers worked on it. The equipment was on the first job for four days. At the second job the tractor was 'down' three or four times and some two or three days each time. On this job the mechanics for plaintiff pulled the 'head' (whatever that is) off it and performed some operation, whether exploratory or correctional we do not know since we are not familiar with mechanical terms. Defendant testified that 'we got to the place where we was spending as much time running after water on that job as we were doing the job.'

At the time defendant made his first complaint and plaintiff's mechanic attempted to rectify the trouble, the machine had operated about forty hours. It was on the second job when they first 'pulled the head.' It had not then gone one hundred fifty hours. After that, and on other jobs, the difficulty continued, and plaintiff's mechanics continued to work on it. According to defendant the machine was, at the beginning, 'down' about one-third of the time and eventually got to where it was down about one-half of the time. Nevertheless, defendant continued, because he had 'work to got to,' and the process of working, going to water and refilling the radiator, and shutting down for repairs continued until the operator quit. This operator testified, 'I couldn't survive on the amount of work I was getting, and I had to quit Mr. Leroux.' The operator's work records correspond roughly with defendant's testimony. They reflect frequent occasions when the machine was not working and when it worked only parts of days. These time records, however, include the time driving to water and refilling the radiator, because the operator was paid for this time, although defendant could not charge the customers for it. This witness testified as an experienced heavy machine operator that under normal conditions a rebuilt machine in good working order would require no 'down' time during the first one hundred fifty hours except a normal thirty minutes per day spent in normal servicing.

Finally, apparently in the latter part of September, defendant pulled the machine into a D-X service station and a Mr. Davis (plaintiff's witness) came out again and pulled the head off and replaced it. Defendant says this was the third head. Davis testified, 'That was when we finally detected what was causing the water leakage.' Q. 'And you finally determined on October 2nd that that was what the trouble was, that there was something wrong with the head, is that the reason it used water, is that right?' A. 'That is right.' The witness said when he took the old head off he 'found it was defective in a certain way, and we put another head on it in place of it.' He said he had taken the head off before but 'we didn't detect that defection then.' Defendant testified that on this last occasion he told Davis, 'I will go ahead and tell them to come and get it, and I am done with it,' and that Davis said, 'If I had been you, I would have done it a long time ago.' Davis denied making this last statement. That night defendant called plaintiff and the tractor was repossessed shortly thereafter.

On July 24, defendant paid plaintiff a five-hundred-dollar installment on the note. He said plaintiff had been working on the machine and he paid it because he thought 'they' would fix it. They said they would fix it. At some time not clear, he told plaintiff, 'Well, I can't pay for it with you working on it all the time.'

On September 15, defendant gave the check for $507.12 which is the subject of plaintiff's claim. At the time this second payment was made more than one hundred fifty working hours had expired. He testified that at that time Mr. Hale told him, 'they would fix it if it cost them a million dollars.' 'I still had in my mind I was going to keep it if they would get it to...