Ferguson Implement Co. v. Parmer
| Decision Date | 27 January 1908 |
| Citation | 107 S.W. 469,128 Mo.App. 300 |
| Parties | FERGUSON IMPLEMENT COMPANY, Appellant, v. J. S. PARMER, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. Alexander H. Waller, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
W. R Clarke for appellant.
An instruction ignoring a portion of the case or which takes from the jury the principal issue in the case is erroneous. Turner v. Loler, 34 Mo. 461; Greer v Parker, 85 Mo. 107; Bank v. Metcalf, 29 Mo.App. 395.
Murry & Searcy for respondent.
(1) In the sale of personal property there is an implied warranty that it is reasonably suitable for the use and purpose for which it is sold and purchased. Birdsell Co. v Keys, 99 Mo.App. 458; Brown v. Weldon, 27 Mo.App. 268; Comings v. Leedy, 114 Mo. 478; Brewing Co. v. McEnroe, 80 Mo.App. 429. (1) The evidence clearly shows that the feeder, for which the notes sued on were executed, was wholly worthless for the purpose for which it was sold and purchased, and was of no value for any other purpose, and that the use and purpose for which defendant purchased same were well known to plaintiff when selling it. (2) Defendant was not bound to rescind the sale upon discovering that the feeder was worthless. He could rescind or keep the property and defend against the full contract price. Birdsell Co. v. Keys, 99 Mo.App. 463; Werner v. O'Brien, 40 Mo.App. 483. (3) And he may do this even though he may have used the property and made partial payments thereon. Danford v. Crookshanks, 68 Mo.App. 311; Werner v. O'Brien, 40 Mo.App. 483. (4) The instructions given in this case by the court fully and fairly covered all the issues in the case, and there was no error committed in refusing the instructions offered by the plaintiff.
--This is a suit to enforce the collection of two promissory notes for $ 80 each executed by the defendant on July 20, 1903, and made payable to the plaintiff. They were due respectively September 1, 1903, and September 1, 1904, each bearing eight per cent interest from date, and given as a consideration for what was called a Monarch Feeder, used in connection with threshing machine.
The defense is that the feeder was wholly unfit for the purpose for which it was intended. The only witness who testified on the part of the defendant was himself. He stated that soon after he bought the feeder he started it to work but he had some trouble with it but that he operated it during the season of that year; and that he operated it the next summer but the governor on it would not work well and he obtained another from plaintiff which he was unable to put on the machine. He admits that after having tried the feeder on the 2d day of August, 1903, he wrote a letter, admitted in evidence, wherein he stated that with the exception of certain defects that it was the finest machine he had ever seen; that in September following he wrote plaintiff that he would try to take up one of the notes; that in December, 1903, he wrote plaintiff that he would try and pay the note that was due; that on the 30th of January, 1904, he wrote a letter to plaintiff in which he asked for its forbearance and promised to pay on the note $ 25 or $ 50 every two or four weeks; that on April the 11th following he sent to plaintiff a check for $ 50, to be applied on the note; that on the 17th of that month he wrote plaintiff a letter asking if the $ 50 check he sent had been received; that on June 1, 1905, he wrote a letter asking for the plaintiff's indulgence and for additional time within which to pay the two notes; and that on July 28, 1905, he took credit on the second note for $ 25.
The plaintiff asked several instructions which the court refused to give. But the court on its own motion instructed the jury as follows:
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