Hess v. Appleton Mfg. Co.

• Decision Date: 03 June 1912
• Citation: 148 S.W. 179,164 Mo. App. 153
• Parties: HESS v. APPLETON MFG. CO.
• Court: Missouri Court of Appeals

148 S.W. 179

164 Mo. App. 153

HESS v. APPLETON MFG. CO.

Kansas City Court of Appeals. Missouri.

June 3, 1912.

1. ACTION (§ 27)—PLEADING.

A petition for damages stating that the defendant sold plaintiff a machine for gathering corn under representations and a written guaranty that it would do certain work, and could be successfully operated with four horses, and also stating that it failed to do the work guaranteed, stated an action for breach

of warranty, and not for false and fraudulent representations.

2. PLEADING (§ 308)—OYER—BREACH OF WARRANTY.

Under Rev. St. 1909, § 1844, providing that when a petition is founded on a written instrument, executed by the other party, and not therein alleged to be lost or destroyed, the same or a copy shall be filed with the petition, the instrument sued on must be filed with the petition in an action for breach of warranty.

3. ACTION (§ 27)—NATURE—TORT OR CONTRACT—BREACH OF WARRANTY.

An action for breach of warranty is founded on contract.

4. ACTION (§ 27)—NATURE—TORT OR CONTRACT—FRAUDULENT REPRESENTATIONS.

An action for false and fraudulent representations is ex delicto, and therefore cannot be said to be founded on contract, though the representations be made in writing.

5. APPEAL AND ERROR (§ 285)—PRESENTATION BELOW—MOTION FOR NEW TRIAL—NECESSITY.

The denial of a motion to require the plaintiff in an action for breach of warranty to attach to his petition the instrument sued on or a copy may be preserved by exceptions and bill of exceptions without a motion for a new trial; this being a matter pertaining to the record proper, and not a matter occurring during the trial to which a motion for a new trial relates.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Joseph A. Hess against the Appleton Manufacturing Company, a corporation. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Ellis, Cook & Barnett, of Kansas City, for appellant. H. S. Julian, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff alleges in his petition that on October 18, 1907, defendant offered to sell him a corn planter, a machine for gathering corn, and "in a written communication to the plaintiff made representations and referred to its guaranty on the back of a printed folder, * * * in which the defendant represented and guaranteed by said writing and printing that said machine would pick ears of corn off the stalks whether standing or lying down, and deliver the ears into a wagon driven beside the machine, and guaranteed to husk clean a large proportion of the ears, etc., * * * and further represented and guaranteed as aforesaid that said machine could be successfully operated with four horses, * * * and upon said representations and guarantee on the part of the defendant the plaintiff did on or about October 28, 1907, agree to purchase said corn picker, and paid to the defendant the sum of $240 for said machine, and paid the freight * * * amounting to $15." The petition further alleges that the machine would not do the work guaranteed, and that plaintiff returned it to defendant, paying return freight charges amounting to $15. The damages are laid at $270, for which judgment is prayed. The written guaranty referred to in the petition was not filed by plaintiff, and defendant filed a motion that plaintiff be required to file either the original communication or a verified copy thereof. This motion was overruled. An exception to the ruling was saved, and defendant elected to stand on the motion, and refused to answer or plead to the petition. Thereupon the court heard the evidence of plaintiff, and rendered judgment for him in accordance with the prayer of the petition. Defendant appealed.

The principal...