Fairbanks, Morse & Co. v. Baskett

• Decision Date: 03 February 1903
• Citation: 71 S.W. 1113,98 Mo. App. 53
• Court: Missouri Court of Appeals
• Parties: FAIRBANKS, MORSE & CO. v. BASKETT.

71 S.W. 1113

98 Mo. App. 53

FAIRBANKS, MORSE & CO. v. BASKETT.

Court of Appeals at St. Louis, Missouri.

February 3, 1903.

SALES—WARRANTY—BREACH — WAIVER — ESTOPPEL—GIVING NOTES—OBTAINING EXTENSIONS—CONDITIONAL SALE—CHATTEL MORTGAGE—ACTION FOR PRICE—INSTRUCTION—QUESTION FOR JURY.

1. Where the purchaser of an engine, sold with warranty of quality, after receiving the machine, gave notes to the seller as required by the contract, the giving of such notes did not debar him from redress for a breach of warranty.

2. Acceptance and retention of an article sold with warranty do not prevent the buyer from recovering on the warranty, if he makes timely objection.

3. The retention of title by the seller of a chattel until paid for is legal, and, in effect, a chattel mortgage.

4. Where the seller of a chattel retains title until it is paid for, and does not require the agreement to be acknowledged and recorded as required by Rev. St. 1899, § 3412, in order to render such agreement valid as against third parties, the seller takes the risk of loss of benefit of the security by any subsequent sale.

5. Where the buyer of a machine sold with warranty, title to which is retained by the seller until full payment, gives a chattel mortgage thereon to a third person, such act does not estop him from relying on a breach of warranty when sued for the price.

6. Where a machine is sold with warranty, and the purchaser secures extensions of the time of payment, such extensions are a sufficient consideration for a waiver on the part of the purchaser of any breach of warranty.

7. Where a machine is sold with warranty, the securing by the purchaser of an extension of the time of payment does not estop him to set up a breach of the warranty in an action for the price.

8. Where a chattel is sold with warranty, breach of the same may be set up by the purchaser in an action for the price, notwithstanding that there was an extension of payment by renewal or otherwise, unless an intention to waive the breach is shown.

9. Where a machine is sold with warranty, and subsequently the purchaser obtains extensions of the time of payment, the question whether there was any intention to waive a breach of the warranty is for the jury.

10. Inasmuch as in executory sales a warranty survives acceptance and survives full payment, promises of the purchaser to pay will not amount to a waiver of any breach of warranty unless they are made with that intention.

11. The question whether such intention exists is one for the jury.

12. Though the maker of a machine sells it at the price of a new one, and delivers a disguised second hand one, in an action for the price the defense of fraud cannot be made unless pleaded.

13. Where the seller of a gasoline engine delivered an engine of the kind and character agreed on, there was no implied warranty that it should be fit for the purpose for which the purchaser intended to use it.

14. Where, in an action for the price of an engine, the defense was a breach of warranty of quality, but defendant himself testified that it was worth a certain amount, it was error to instruct that, if the engine was wholly worthless, plaintiff could not recover.

15. Where the seller of an engine agreed to furnish new parts if it should prove defective in material or workmanship within a year, in an action for the price, the defense being a breach of warranty, the jury should have been instructed that plaintiff did not agree to make good the natural wear of the machine.

16. In an action for the price of an engine, the defense being a breach of warranty, there was offered in evidence, ostensibly for the purpose of proving that a certain person was plaintiff's agent, an advertisement in the nature of a "puff" for plaintiff's engine. Held that, the fact of agency having been admitted, the advertisement was incompetent, and might have been prejudicial.

Appeal from circuit court, Audrain county; Elliott M. Hughes, Judge.

Action by Fairbanks, Morse & Co. against Cecil M. Baskett. From a judgment for defendant, plaintiff appeals. Reversed.

C. A. Barnes, for appellant. W. W. Fry, for respondent.

GOODE, J.

On October 3, 1900, defendant purchased a gasoline engine of the plaintiff (a corporation), to be used in running machinery in his printing office in the city of Mexico, Mo. The contract of sale was in writing, and contained an express warranty that the article sold should be a gasoline engine of 2½ horse power; also a warranty that the engine was made of good material and in a workmanlike manner. If any part proved defective in material or workmanship within one year from the date of shipment, there was a stipulation binding the plaintiff to replace it free of cost. The memorandum recited that it was the only agreement between the parties, and that there was no verbal understanding. In addition to the terms stated, there was one that the title to the engine should remain in plaintiff until paid for in full, and that plaintiff might, in case of default, seize and sell it, by publishing notices, and apply the proceeds to pay the balance due on the contract. Baskett made a cash payment of $50, and, after he had received the engine and used it about two months, executed two notes for the balance of the price,—one for $70, due January 2, 1901; the other for $71.50, due March 1, 1901; both in the ordinary form of promissory notes. He paid $25 on the first note at a subsequent date, and published an advertisement for the plaintiff in his newspaper, for which he was entitled to a credit of $5. Defendant ordered from the plaintiff new parts to replace some which either gave away from wear or were originally defective, and plaintiff also sent a man to fix the engine at the defendant's request. A portion of the expense of these matters was paid by the defendant in cash, but plaintiff claims a balance due on account for the labor and repairs. This action was brought on said notes and on that account; there being three counts in the petition,—one for each note and one on the account. The answer of the defendant admits the execution of the notes, and receipt of the merchandise charged in the account, and pleads that the notes were executed and delivered without a consideration; further, that they were given under the aforesaid contract for the purchase price of the engine, and that the plaintiff in said contract agreed to furnish a certain kind of engine, and comply with certain warranties in said contract contained, and also with other warranties; that the engine furnished was not of the kind agreed, nor did it comply with the warranties made by the plaintiff, of all which facts plaintiff had been notified by the defendant on various occasions and the return of the engine tendered, but plaintiff refused to accept it. The answer further states that the articles of replacement and repair were furnished under the contract, and defendant was not liable for them, because they were to be furnished by the plaintiff free of cost. Besides said defenses, the answer pleaded a counterclaim in which the defendant asked to recover what he had paid on the engine, to wit, $75, and what he had expended for repairs, to wit, $20; also the $5 for advertising. The replication, after stating there was a good consideration for the notes, and denying the allegations of the answer, pleads that defendant waived all claim for damages on account of the defects in the engine by accepting it, making payments on the price, executing the notes in suit for the balance of the purchase price, using the engine for more than a year, making numerous promises to pay the notes, ordering repairs without demanding that they be furnished by the plaintiff to supply defective parts, and by mortgaging the engine. These acts, the replication charges, estopped the defendant from asserting a failure of consideration or damages for breach of warranty. The replication further charges that any inefficiency in the engine was due to careless handling by the defendant. There was testimony that the engine was found to be defective as soon as it was set up in defendant's printing office; also that it was not worth over $25, and was useless in a printing establishment. According to defendant's witnesses, there were blisters on the paint, indicating that it was a secondhand engine. Its movements were erratic; its explosions irregular. The fly wheels on it were cracked so that both of them afterwards broke. It "knocked" loudly when running, so as to be heard a block or more away. The igniter (that is, the appliance to send a spark through the gasoline vapor, and thereby produce the explosions which caused the engine to operate) was secondhand and inefficient. The engine often stopped during the day; could not be depended upon. Its irregular movements injured the other machinery in the office, broke up the type, made the newspaper come out of the presses uneven and smudged, made the folder tear the papers as they went through, and, altogether, caused the printing establishment to turn out bad work. The defendant notified plaintiff of the defects, and his agent called on the plaintiff and asked that the engine be made to run well. There was also testimony that defendant offered to return the engine, but the circuit court held that the offer was too late. On the other hand, there was evidence to show the engine was new, and that the few blisters on it were produced by its having been tested in the factory before it was shipped, that the motion of all gasoline engines is somewhat irregular, but that efficient service by them does not require a regular motion; that whatever imperfection there was in the work of this particular engine was due to its being set on a foundation not sufficiently stanch and solid (the defendant was bound by the agreement to prepare the foundation), and to its being handled improperly and badly cared for. An extensive correspondence, ranging over nearly a year, took...