Hart-Parr Co. v. Thomas

• Decision Date: 12 March 1918
• Docket Number: 8056.
• Citation: 171 P. 867,74 Okla. 104,1918 OK 152
• Parties: HART-PARR CO. v. THOMAS.
• Court: Oklahoma Supreme Court

171 P. 867

74 Okla. 104, 1918 OK 152

HART-PARR CO. v. THOMAS.

No. 8056.

Supreme Court of Oklahoma

March 12, 1918

Rehearing Denied April 9, 1918.

Syllabus by the Court.

A general demurrer does not go to a misjoinder of causes of action, and in order to attack a misjoinder of causes of action, a demurrer for such misjoinder must be interposed.

Where a petition is filed in an action for damages for breach of warranty in the sale of machinery, and there are also sufficient averments in the petition upon which to predicate rescission, and said petition is not demurred to on the ground of misjoinder of causes of action, and the court announces that the case will be tried upon the issue of rescission, and no objection is made thereto, and the case is tried upon such issue, on appeal to this court, this court will not entertain a contention that said cause is tried without the issue joined.

Where a party tries his case upon one theory without objection, he will not be heard, on appeal, to urge a different theory of the case than the one on which it was tried.

Commissioners' Opinion, Division No. 1. Error from District Court, Woods County; W. C. Crow, Judge.

Replevin by the Hart-Parr Company against A. N. Thomas. Judgment for defendant, motion for new trial overruled, and plaintiff brings error. Affirmed.

H. A Noah, of Alva (Chester I. Long, and Austin M. Cowan, both of Wichita, Kan., of counsel), for plaintiff in error.

L. T Wilson, of Alva, and J. N. Tincher, of Medicine Lodge, Kan for defendant in error.

COLLIER C.

This is an action in replevin, brought by the plaintiff in error, hereinafter styled plaintiff, against the defendant in error, hereinafter styled defendant, based upon notes and mortgage given for the purchase of threshing machinery, purchased by the defendant from the plaintiff. The defendant answered and filed a cross-petition, praying for damages of $1,000 for the breach of a warranty in said machinery, and tendered in the pleadings delivery of all of the property sued for, except an engine, which was not purchased from the plaintiff, and upon which the mortgage was given in addition to said threshing machinery purchased from the plaintiff. The plaintiff demurred to the answer and cross-action, upon the ground "that the same failed to state facts sufficient to constitute a defense or to sustain an action," which demurrer was overruled and exception saved. Thereupon plaintiff filed reply to said answer and cross-petition, denying the allegations thereof. Upon a statement by the court that the parties differed on the law as to what issue should be submitted in the cause, it was claimed by the defendant that he was entitled to rescind, and it was then announced by the court that that issue would be submitted, and to this announcement of the court plaintiff did not object. The court and counsel having consulted, the cause proceeded, and was tried as one for rescission.

The evidence is exceedingly voluminous, and we do not deem it necessary to recite it in detail. The undisputed evidence is: That the machinery in question, except the engine which belonged to the defendant, was purchased from the plaintiff under a guaranty as to its efficiency; that the defendant paid freight thereon in the sum of $90; that shortly after commencing threshing operations, the defendant complained to the plaintiff of the failure of the machinery to meet the guaranty, and thereupon an agent of the plaintiff was sent out to endeavor to properly adjust and cause the machinery to meet the guaranty. It was also shown by uncontradicted evidence that the value of the engine included in the mortgage, which was not purchased from the plaintiff, but was owned by the defendant, was $1,000. The execution of the notes and mortgage, the basis of this action, was admitted by the defendant, and that the notes given for said threshing machinery had not been paid. It was also in evidence, and undenied by the plaintiff, that all of said threshing machinery purchased from the plaintiff, and said engine, had been seized and disposed of by the plaintiff. The evidence was in conflict as to whether or not the machinery came up to the warranty, as to whether or not the action of the plaintiff through its agents was such as to waive a return of the machinery by the defendant to the plaintiff, and whether or not the plaintiff, prior to the commencement of this action, tendered a return of said property to the plaintiff. There were very many objections to the admission and exclusion of evidence, to which proper exceptions were saved.

The court, among other instructions, gave instruction No. 3, which was duly excepted to, and which reads:

"You are instructed that in order to entitle the defendant to a cancellation of the notes and mortgage sued upon, it was necessary for him to make a tender, that is, a return of the property, or an offer to so return said property to the plaintiff or its authorized agent, within a reasonable time after the discovery of the defects complained of, if there were such defects, and he did not do this, and therefore unless you find from a preponderance of the evidence that the actions and conduct of the plaintiff were such as to relieve the defendant of the necessity of making a return of said property; and in this connection you are instructed that if you find from a preponderance of the evidence that the defendant within the time stated in the warranty contract notified the plaintiff of alleged defects in said machinery, and that thereafter the plaintiff sent its agent to remedy the defects alleged to be in said machinery; and if you further find from a preponderance of the evidence that the said agent did not remedy the alleged defect, but represented and held out to the defendant that said machinery could be fixed, and directed him to wait for the company to fix the same; and if you further find from a preponderance of the evidence that the defendant relied upon said promise to cure said defect, if there were any, in said machinery, and for that reason did not return the machinery-then your verdict should be for the defendant, and you should fix the amount of his recovery at the reasonable market value of the traction engine at the time it was seized by the plaintiff, together with the amount of freight paid by the defendant, the amount of

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