Hayner v. Churchill

• Decision Date: 19 March 1888
• Citation: 29 Mo.App. 676
• Parties: J. E. HAYNER & COMPANY, Appellants, v. T. H. CHURCHILL et al., Respondents.
• Court: Kansas Court of Appeals

29 Mo.App. 676

J. E. HAYNER & COMPANY, Appellants, v. T. H. CHURCHILL et al., Respondents.

Court of Appeals of Missouri, Kansas City.

March 19, 1888

APPEAL from Nodaway Circuit Court, HON. CYRUS A. ANTHONY, Judge.

Reversed and remanded.

The case is stated in the opinion.

J. H SAYLER, R. H. WILFLEY, and W. W. RAMSEY, for the appellants.

I. Instruction number one, on behalf of the defendants, ought not to have been given, because: (1) It submitted to the jury issues not made by the pleadings. The sole and only issue raised by the pleadings was, whether the machine, for which the note in suit was given, " was worthless and of no value for the purposes for which it was bought and intended." The second paragraph or count in defendants' answer, thrown in, " by way of counter-claim, and setoff and recoupment" was abandoned or lost sight of in the trial. Under this issue the plaintiffs' agent was not charged with having made representations, statements, pledges, or promises, it was not a case of express warranty, fraud, or deceit. We submit that it was improper for the court to tell the jury " that if the plaintiffs' agent made this statement, that representation, or that pledge, or this promise, the plaintiffs would be bound by them," etc. Issues cannot be changed by instructions. Currier v. Lowe, 32 Mo 203; Moffat v. Conklin, 35 Mo. 453; Bank v Armstrong, 62 Mo. 59; Bank v. Murdock, 62 Mo. 70; Wade v. Hardy, 75 Mo. 394; Nugent v. Curren, 77 Mo. 323; Glass v. Gelvin, 80 Mo. 297; Kennedy v. Klein, 19 Mo.App. 15. " Instructions must be framed with regard to the issues made in the pleadings." Henry v. Rice, 18 Mo.App. 497. (2) This instruction either wholly ignored the issue, whether " the machine was worthless and of no value," or it assumed the fact that said machine was defective; it seems to rest the right of defence upon statements of plaintiffs' agent Peck v. Richey, 66 Mo. 114; Farrar v. David, 33 Mo. 482; Merritt v. Given, 34 Mo. 98; Sawyer v. Railroad, 37 Mo. 240. When this court considers the fact, that this was the only instruction given by the court which even attempted to define the issue, we believe it will be seen at once that the jury were misdirected. Under it the jury could only decide what Dodge did or did not say. If defendants desired to interpose such a defence, viz., a promise by plaintiffs' agent to pledge himself and his company to make the machine work well, then defendants ought to have pleaded such contract, and set it up in their answer, as was done in Benton v. Klein, 42 Mo. 97, and all similar cases.

II. There can arise no pretense that the plaintiffs' company ratified any outside statement of Dodge. It is nowhere shown that plaintiffs ever heard of such until this suit was instituted. Railroad v. Gazzam, 32 Pa.St. 340; Comb v. Scott, 12 Allen (Mass.) 493; Manning v. Gasharie, 27 Ind. 399; Humphrey v. Havens, 12 Minn. 298. The mere acceptance of the note by plaintiff was no ratification nor bringing suit upon it. Cooley v. Perrine, 41 N.J. Law, 322.

III. We believe the trial court committed error in refusing to give instructions, numbered five, eight, and nine. Compare instructions five and nine, with the theory of the contract of sale, as narrated and told by Dodge. For the life of us, we can't see wherein the court saw objections to them. Dodge's simple story was: " I told them I would let them take the machine out and run it through the harvest; if it proved satisfactory, they could come in September 1, and pay for it. They gave notes about September 1, 1883. When they came in to settle they asked me, if there was any improved knotter on machine next season, if I would give it to them free. They made no complaint about anything else than the knotter. They paid me one-third." If a thousand witnesses had testified to a different state of facts, we must here urge that we were entitled to have instructions applicable to our theory of the case. Clark v. Hammerle, 27 Mo. 55; Fitzgerald v. Hayward, 50 Mo. 516; Sigerson v. Pomeroy, 13 Mo. 620; Mead v. Brotherton, 30 Mo. 201. " Instructions should be predicated on the whole evidence, and present, for the consideration of the jury, the different aspects of the question at issue, as shown by the pleadings and evidence." Mansur v. Botts, 80 Mo. 651; Ellis v. Wagner, 24 Mo.App. 467.

EDWARDS & ELLISON, for the respondents.

I. At the time the machine was sold, it was known by both the agent and respondents to be defective, but whether the defect was remediable or not was not known The agent supposed he knew, and told respondents that all it needed was an '84 knotter; in which he was mistaken, for an '84 knotter was afterwards put on to the machine, and it did no better. He induced respondents to purchase the machine and execute the notes, by the statement that it would do its work well and by the promise to put it in good repair. It nowhere appears that he had no authority to bind the company by such a promise; if it does, it is not pretended that respondents had any notice of it. The only notice claimed to have been given was in relation to the agent exceeding the authority in letting respondents use the company's machine three or four months before agreeing to purchase it. In the absence of notice to respondents of want of authority in the agent, were the statements of the latter binding on the company, even though the notes were executed with knowledge of the fact that a defect of some nature existed? To the effect that the statements made by the agent are binding, though the defect was known to the purchaser at the time of the sale if the agent promised to remedy it, see, Aultman & Taylor Co. v. Hefner, 2 S.W. 861; 2 Benj. on Sales, sec. 938, note 10; Courtney v. Boswell, 65 Mo. 196; McCormick v. Kelly, 9 N.W. 675; Aultman v. Olson, 26 N.W. 451; Branson v. Turner, 77 Mo. 479; Flatt v. Osborne & Co., 22 N.W. 440. To the effect that such statements bind the principal, if the purchaser has no notice of restrictions on the agent's power in that respect, see, Osborne v. Carpenter, 34 N.W. 163; Keith v. Hirschberg & Co., 2 S.W. 777; Talmage v. Bierhause, 2 N.E. 716; Murray v. Brooks, 41 Ia. 45; 2 Whar. on Evid., sec. 1170; Crews v. Garneau, 14 Mo.App. 505; Keough v. Leslie, 92 Pa.St. 424; Kinealy v. Burd, 9 Mo.App. 359; Nichols, Shepard & Co. v. Shaffer, 30 N.W. 383; Farrar v. Peterson, 3 N.W. 457; McGinnis v. Mitchell, 21 Mo.App. 493; State ex rel. v. Gates, 67 Mo. 139.

II. We think the second paragraph of respondents' pleading, filed with the justice, is sufficient to cover the issues. Voss v. McGuire, 18 Mo.App. 477. If not they have certainly waived any right to complain. No motion or objection was offered at the trial in the circuit court, when by amendment, all imperfections in the pleading could have been remedied, the pleadings could have been amended, so as to conform to the proof, if attention had been called to a variance. Having failed to do so the objection is waived. Stiller v. Railroad, 6 N.W. 303.

III. It is admitted that the agent said the machine was a good one, made of good material, and would do its work well. He also agreed for the company to remedy defects, whereby defendants were induced to purchase the machine and execute the notes. Whether there was in fact any defect was submitted to the jury. The instructions given by the court covered every issue in the case; and those refused either ignored material issues, or were partial repetitions of those given; or asserted as law that which was not law.

IV. Instructions eight and nine were properly refused, for the reason that they authorize the jury to find for the plaintiffs, even though they might believe the machine was warranted by the agent to do good work, and he promised to remedy defects, which he afterwards failed to do. The jury might have believed everything stated in each of these instructions, and also have believed everything which we claim the agent said about the machine, and yet, they are instructed to find for the plaintiffs, if they further believe that they paid for the machine and made no complaint. Compton v. Parsons, 76 Mo. 455; Courtney v. Boswell, 65 Mo. 196; Osborne v. Marks, 22 N.W. 1.

V. We submit that the instructions given by the court covered every issue in the case, completely. The jury were told that if they believed the defect (if any) in the machine could have been remedied by any given expenditure, they could only deduct such a sum from the amount sued for. If a knotter was all that was required, as the agent claimed, then the price of a knotter was all the jury were authorized to deduct.

ELLISON J.

This action is based on a...