Humana Co v. Hughes

• Citation: 213 S.W. 515
• Decision Date: 03 June 1919
• Docket Number: No. 15507.,15507.
• Parties: HUMANA CO. v. HUGHES et al.
• Court: Missouri Court of Appeals

213 S.W. 515

HUMANA CO. v. HUGHES et al.

No. 15507.

St. Louis Court of Appeals. Missouri.

June 3, 1919.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

"Not to be officially published."

Suit by the Humana Company against Clarence E. Hughes and Edward C. Duckworth, copartners, as the Hughes Printing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Albert Chandler, of St. Louis, for appellant.

Edward A. Feehan and Oliver Blackinton, both of St. Louis, for respondent.

BECKER, J.

This is a suit upon promissory notes given for the purchase price of machinery. Defendants filed an answer and counterclaim, setting up a breach of warranty, failure of consideration, and misrepresentation. The reply denied the affirmative defenses set up by way of answer and counterclaim. The case was tried before a jury and at the close of the whole case, at the request of plaintiff, the court directed a verdict for plaintiff upon the promissory notes sued upon, and also directed a verdict for plaintiff on defendants' counterclaim. Defendants in due course appeal.

It appears that the defendants were in the general job printing business; that the plaintiff is a manufacturer of an attachment that is termed an automatic press feeder.

Plaintiff introduced the 28 notes sued upon and rested. Thereupon defendants, over the objection of counsel for plaintiff, was permitted to introduce testimony tending to prove: That the defendants entered into negotiations for the purchase of one of plaintiff's automatic press feeders, which negotiations extended over a period of 3 months. That plaintiff's salesman told defendants that if they would put in one of the automatic feeders, and "it don't save you any money, it won't cost you anything." That "the machine would save half the pay roll." That "it (the press) would feed like a human being." That "there would be no spoilage on his machine; it was so near human." That "it would be satisfactory to them." That one of the machines was actually installed on one of defendants' presses and operated by a demonstrator furnished by the plaintiff for a period of 6 weeks or 2 months. That an arrangement was then entered into on the part of the defendants with the plaintiff whereby two other machines were to be installed, the payment for the same to be provided for by a series of monthly notes, each note in an amount which would be equivalent to one-half of the pay roll of operating the presses when such presses were worked by hand. That the defendants signed a written instrument termed a purchase agreement, or "title contract." That, however, "the understanding with the salesman and myself was that the presses would practically cost me nothing, because I could pay for them with one-half of the payroll cost of the presses."

Before the first machine was installed, in February, 1913, the following correspondence was had between plaintiff and defendants:

"St. Louis, February 18, 1913. Matthias Plum: We are willing to have you put your Humana and automatic feeder on trial with the understanding that if it is the machine we want we will keep it, and if it is not the machine that we want, we will not be obligated in any way. [Signed] Hughes & Company. H."

                           "Newark, N. Feb. 20, 1913
                

"Hughes & Co., Hughes Pl., St. Louis, Mo.— Gentlemen: Beg to acknowledge receipt of your order of Feb. 18th, in which you grant us the privilege of placing a Humana on your press for trial, with the understanding that should it not be satisfactory to you, we will remove the same at your request without cost to you. We, no doubt, will ship in the course of a day or two. Yours very truly, Matthias Plum."

That such machine was thereupon stalled and was operated almost continuously by plaintiff's salesman and demonstrator up to May 24, 1913. On May 9th defendants wrote plaintiff as follows:

                             "Hughes & Company
                                   "St. Louis, May 9, 1913
                

"Matthias Plum, Newark, N. J.—Gentlemen: We will take three machines, one for the 12×18, two for the 10×15, for which we agree to pay after erection and acceptance, thirty-six notes of $43.06 each, bearing 6 per cent. interest. Hughes & Co. Clarence H. Hughes."

To which letter the plaintiff replied as follows:

                         "Newark, N. J. May 12, 1913
                

"Hughes & Co., 214 Pine St., St. Louis, Mo.— Gentlemen: Replying to your letter of the 9th inst., would say that we hereby agree to install two additional Humanas, 10×15 in size, and accept in payment for them, with the 12×18 that you now have, 36 notes of $43.06 each, bearing 6 per cent. interest. These notes to be dated on the day that you accept machines, after they have been put in running shape, falling due one month apart until the 36th note is paid. If you will kindly take this matter up with Mr. Duff we will arrange to install these machines. Thanking you for your order, beg to remain, Yours very truly, Matthias Plum."

And thereafter, on May 22d, the two additional automatic press feeders were installed in defendants' establishment, and the defendants executed, acknowledged, and delivered to the plaintiff a title contract, in writing, covering the purchase of the said machines, and simultaneously therewith the defendants executed and delivered defendants' 36 notes of $43.06 each, bearing 6 per cent. interest, payable one each month consecutively for a period of 36 months thereafter.

It appears that the title to the machines was to remain in the plaintiff until the last of the notes had been paid in full, and that upon the failure to pay any of the notes promptly at maturity, the remaining unpaid notes would immediately become due and collectible at once.

It further appears that the defendants retained the machines and used them continuously from the date of their installation up until the 14th day of February, 1914, when defendants took the automatic feeders off their presses and wrote the plaintiff as follows:

                                   "St. Louis, Feb. 14, 1914
                

"Mr. Matthias Plum, Humana Co., Newark, N. J.—Dear Sir: After a long and thorough trial of your automatic feeders we have come to the conclusion that they are not adapted to our class of work, viz. general job printing. Accordingly we have taken them off the presses and repacked in shipping order, and are now holding them subject to your order. Acc...