Fairbanks-Morse & Co. v. Mercurio Bros.

• Decision Date: 04 February 1913
• Citation: 170 Mo. App. 668,154 S.W. 425
• Court: Missouri Court of Appeals
• Parties: FAIRBANKS-MORSE & CO. v. MERCURIO BROS. et al.

154 S.W. 425

170 Mo. App. 668

FAIRBANKS-MORSE & CO. v. MERCURIO BROS. et al.

St. Louis Court of Appeals. Missouri.

February 4, 1913.

Rehearing Denied March 15, 1913.

1. SALES (§ 284) — BREACH OF WARRANTY — LIABILITY.

Where a company sells an engine under a warranty that it will operate properly, and its representative properly installs same, except that under the direction of the buyer's superintendent he makes certain connections not contemplated by the seller, as a result of which the engine fails to operate properly, the seller is not liable for breach of warranty.

2. TRIAL (§ 191) — INSTRUCTIONS — BREACH OF WARRANTY — ASSUMPTION OF FACTS.

An instruction to find for plaintiff on defendants' counterclaim for damages for breach of warranty of an engine purchased and properly installed by plaintiff's representative except for certain defective connections made under directions of a certain person, if such person was defendants' agent and the failure of the engine to operate properly was due to such connections being made, was not open to the objection that it assumed that he had such authority as agent for defendants.

3. SALES (§ 447) — BREACH OF WARRANTY — COUNTERCLAIM — VERDICT — INCONSISTENT FINDINGS.

Where, in an action on an account containing several items for the installation of an

engine sold by plaintiff to defendants under a warranty, defendants admitted liability except for one item which they claimed was occasioned by plaintiff's breach of warranty, and plaintiff rested on such admission and introduced no evidence in support of the account, a finding for plaintiff only for the amount of the account which defendants admitted was not inconsistent with a finding against defendants upon a separate counterclaim for breach of the warranty.

4. APPEAL AND ERROR (§ 1068) — HARMLESS ERROR — INSTRUCTION — CURE BY VERDICT.

In an action on an open account, error in giving an instruction which authorized a verdict for plaintiff on certain disputed items upon which plaintiff introduced no evidence was harmless, where the jury did not find for plaintiff in respect to such items.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Fairbanks-Morse & Company against Mercurio Bros. and others. From judgment for plaintiff, defendants appeal. Affirmed.

Barclay, Fauntleroy, Cullen & Orthwein, of St. Louis, for appellants. J. Lionberger Davis and Jones, Hocker, Hawes & Angert, all of St. Louis, for respondent.

ALLEN, J.

This is an action by the plaintiff, a corporation, respondent in this court, against defendants, appellants here, upon an open account aggregating $373.41. The suit was begun before a justice of the peace, by filing the account, consisting of a large number of items of labor and material, covering a period from June 19, 1909, to January 17, 1910, inclusive; the plaintiff demanding the said sum of $373.41, with accrued interest thereon to October 1, 1910, in the sum of $21.24, making a total of $394.65. In their answer filed in the justice court the defendants denied any indebtedness to plaintiff, and averred in substance that on or about the 1st day of June, 1909, plaintiff sold to defendants a 35 horse power gas engine and warranted and represented that the material therein and the workmanship should be of the best class, and further agreed that if any part thereof showed defective material or workmanship within one year from date of shipment the plaintiff would furnish new parts thereof free of charge; that the engine was defective in workmanship and material and not worth the price which defendants agreed to pay for it, to wit, $2,339; and that the items sued for were not chargeable to defendants. And for further answer and by way of counterclaim the defendants averred that plaintiff sold them the engine for the sum above mentioned, and falsely and fraudulently represented to them that the same would furnish sufficient heat to heat their building and run certain machinery therein, and that defendants relied upon said representations; that plaintiff agreed to superintend the erection of the engine in their said building; that the engine was not as represented; and that plaintiff so carelessly and negligently erected the same on defendants' premises that the engine would not run and operate, whereby defendants were damaged in the sum of $500, for which sum they prayed judgment. Judgment was rendered in the justice court in favor of the defendants on their counterclaim, and in due time the plaintiff perfected its appeal to the circuit court of the city of St. Louis, where the cause was tried before the court and a jury. At the trial in the circuit court defendants admitted the correctness of certain items of the account, amounting to $323.59, and that plaintiff was entitled to recover that sum. There was a verdict for plaintiff for $332.65, being the amount admitted by defendant to be due plaintiff with interest thereon, and a verdict for plaintiff on defendants' counterclaim, and judgment was entered...