Fairbanks-Morse & Co. v. Mercurio Brothers
| Decision Date | 04 February 1913 |
| Citation | 154 S.W. 425,170 Mo.App. 668 |
| Parties | FAIRBANKS-MORSE & COMPANY, Respondent, v. MERCURIO BROTHERS et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
AFFIRMED.
Judgment affirmed.
Barclay Fauntleroy, Cullen & Orthwein for appellants.
J Lionberger Davis and Jones, Hocker, Hawes & Angert for respondent.
--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 thirty-five 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, $ 2339, 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 accordingly. After an unsuccessful motion for a new trial, the defendants duly perfected their appeal to this court.
Learned counsel for appellants insist, that there was no evidence to support the verdict for plaintiff on the defendants' counterclaim; that the trial court erred in giving instruction numbered "4" given by the court at the request of plaintiff; and that the verdict of the jury is inconsistent, in that the jury found for plaintiff on defendants' counterclaim without finding for plaintiff on the disputed items of the account.
As to the contention of appellants that there was no evidence to support the verdict for plaintiff on defendants' counterclaim, there was evidence that one Berry was employed by defendants to erect the macaroni factory for defendants into which the engine purchased from plaintiff was to be placed; that he superintended the erection of the engine which was installed by one Merrell, the representative of plaintiff, and that he caused to be connected with the engine a certain coil so as to get heat from it for use in the drying rooms of the factory. There was evidence that the connection of the engine with these coils was not contemplated or recommended by plaintiff, and that the same caused the cylinder of the engine to heat and prevented it from properly performing its functions, and that its failure to properly operate was due to this and not to defective material or poor workmanship, nor to negligence of plaintiff in erecting the same. There was evidence that Berry advised defendants as to what kind of an engine should be installed and directed its connections with the coil of pipes, which he installed in defendants' factory. There was ample evidence from which the jury might well find that Berry had authority to represent the defendants, and to direct the actions of plaintiff's superintendent who installed the engine, at least in so far as concerns the...
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