First Nat. Bank v. Hoover

• Decision Date: 12 June 1922
• Docket Number: No. 14179.,14179.
• Citation: 242 S.W. 107
• Parties: FIRST NAT. BANK OF WINDSOR v. HOOVER.
• Court: Missouri Court of Appeals

242 S.W. 107

FIRST NAT. BANK OF WINDSOR v. HOOVER.

No. 14179.

Kansas City Court of Appeals. Missouri.

June 12, 1922.

Appeal from Circuit Court, Henry County; C. A. Calvird, Judge.

"Not to be officially published."

Suit by the First National Bank of Windsor, Mo., against O. E. Hoover. Verdict for defendant, and, from order granting plaintiff a new trial, the defendant appeals. Affirmed.

Montgomery & Rucker of Sedalia, for appellant.

Ross E. Feaster, of Windsor, and Parks & Son, of Clinton, for respondent.

ARNOLD, J.

This is a suit by the assignee of a contract of sale for an unpaid balance thereon.

The petition charges that on March 20, 1919, defendant entered into a written contract of purchase with one T. W. McKee, wherein defendant agreed to purchase one Avery tractor for the price and sum of $900 cash and one automobile; that afterwards the tractor was delivered to defendant and a cash payment of $450 made thereon, and the automobile was delivered to McKee, as per contract, leaving a balance of $450 which was due September 1, 1919. It is also alleged that on May 5, 1919, plaintiff herein became the purchaser for value of the contract and interest of the said McKee therein. The prayer of the petition was for the balance of $450 and interest thereon.

The answer admitted the execution of the contract for the purchase of the tractor, the delivery thereof, and the cash payment of $450, and the delivery of the automobile to McKee. The answer also admitted the refusal to pay the remaining $450, denied that said contract represented any indebtedness, for the reason that at the time of the execution of the contract defendant purchased the tractor for a specific purpose, to wit, for breaking ground on his farm for cultivation, and that this fact was fully known to McKee when the purchase was made; that said McKee represented said tractor would do the work satisfactorily and that defendant relied upon said statements and representations in the purchase of the machine.

The answer further charged that said statements and representations of McKee were false and untrue, and known to McKee to be untrue at the time they were made; that they were made for the purpose of deceiving and defrauding defendant; that the machine was unsatisfactory and could not be made to do good and satisfactory work by skillful handling and operation. The answer further avers that said McKee was duly notified that said machine utterly failed to do the work it was designed to do and for which it was purchased; that upon finding the existence of these facts, defendant tendered to said McKee said machine and the appliances thereto belonging, and demanded of him the return of the payments theretofore made and the return to defendant of the contract.

The reply was a general denial.

The testimony offered by plaintiff was formal and consisted of the contract and what is termed a "satisfaction slip," which means that an agent of the factory had come to defendant's home, repaired the tractor and endeavored to make it work properly, and at the end of his endeavor defendant had signed a paper stating that the machine was then satisfactory. As to these matters there is no dispute. Defendant testified the slip was presented to him in the evening when it was too dark for him to see to read it, and that McKee, at the time, stated that the purpose of the slip was to certify only that the factory agent had been at work on the machinery, and, relying on this statement as true, defendant had signed it.

Defendant's testimony was directed to the question of the failure of the machinery to be made to perform satisfactorily the work for which it was purchased. This was not refuted by plaintiff. The cause was tried to a jury and the verdict was for defendant.

Plaintiff, in due time, filed a motion for a new trial in which he declared:

(1) The court erred in refusing to give the instructions to the jury offered by plaintiff,

(2) The court erred in the instructions given to the jury at the instance of the defendant.

(3) The verdict was for the wrong party.

(4) The verdict is against the evidence and the weight...