Hunter v. Waterloo Gasoline Engine Co.

Decision Date08 November 1921
Docket NumberNo. 16589.,16589.
Citation237 S.W. 819
PartiesHUNTER v. WATERLOO GASOLINE ENGINE CO. et al.
CourtMissouri Court of Appeals

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

"Not to be officially published."

Action by H. E. Hunter against the Waterloo Gasoline Engine Company and the Hunter Supply Company and others, which was dismissed by the plaintiff as to all the defendants except the Hunter Supply Company. Judgment for defendant on directed verdict at the close of defendant's evidence, and plaintiff appeals. Affirmed,

Ward & Reeves, of Caruthersville, and Riley & Riley, of New Madrid, for appellant.

Gallivan & Finch, of New Madrid, for respondents.

BRUERE, C.

In this action plaintiff sues to recover the purchase price paid to the defendant, Hunter Supply Company, for a Waterloo Boy gasoline tractor.

The suit was originally brought also against the Waterloo Gasoline Engine Company, William R. Holmes, and Robert E. Holmes, doing business under the firm name of W. R. Holmes & Son. Before the trial plaintiff dismissed as to all of the defendants except respondent Hunter Supply Company. At the close of plaintiff's evidence, over plaintiff's exceptions, the trial court directed a verdict for the defendant. From a judgment on that verdict plaintiff appeals.

The cause of action stated in the petition is as follows:

"That on the 6th day of August, 1917, defendants sold and delivered to plaintiff an oil tractor for the price and sum of $950; that said tractor was sold by the defendants and purchased by the plaintiff for the purpose of and to be used by plaintiff in plowing and preparing plaintiff's land to sow wheat, and that defendants well knew that said tractor was purchased by plaintiff for said purpose; that said tractor was wholly unfit and useless for the purpose and use for which it was sold by the defendants, and purchased by plaintiff. Plaintiff further states that, upon his ascertaining said tractor was wholly unfit and useless for the purpose of breaking and preparing his land to sow wheat, he notified defendants of this fact, and tendered said tractor to them, and demanded the return to him of the purchase price paid therefor; that defendants refused to accept said tractor and refused to pay plaintiff said sum."

Judgment was prayed for $950, the purchase price paid for the tractor.

The answer of the Hunter Supply Company contained a general denial, and the following affirmative defense:

"That the plaintiff, prior to the 6th day of August, 1917, advised this defendant that he desired to buy an oil tractor known as the Waterloo Boy tractor, and upon such representation this defendant purchased two Waterloo Boy tractors of the make and kind plaintiff desired to buy, and that thereafter said tractors were shipped to this defendant, and upon their arrival the plaintiff herein took one of said tractors to his field and tested and tried said tractor, and, after having tested and tried the same by a demonstration, agreed to and did purchase one of them from this defendant for the price and sum of $950. Defendant further says that, upon the sale of said tractor, the plaintiff took the same and used it for a long period of time, to wit, about 30 days, and then came to defendant and made payment therefor, and defendant says that this defendant purchased said tractor at the request of plaintiff, and for the purpose of resale to the plaintiff, and that the plaintiff used and tested said tractor before it was purchased, and for some time after the sale, and before he made payment therefor. That this defendant was not the manufacturer of said tractor, and bought the same for sale at the special instance and request of the plaintiff, and sold the same to the plaintiff after the plaintiff had seen and inspected, tested, and tried said tractor."

The reply denied generally the new matter set up in the answer.

The facts disclosed by the evidence are: The Waterloo Boy tractor is a standard make gasoline tractor, manufactured by the Waterloo Gasoline Engine Company, and is one of the most largely used and sold tractors on the market. In July, 1917, the plaintiff met H. I. Kohn, a salesman of the Waterloo Gasoline Engine Company. Kohn showed him a catalogue, showing the cut and mechanical part of the tractor, and discussed with him its special points, merits, and features. The plaintiff inquired of Mr. Kohn what the machine could do, and asked for a warranty. Mr. Kohn told him that the only warranty he would offer, or was permitted to offer, was the printed one in the catalogue, to which he called plaintiff's attention. Being told that the Hunter Supply Company would handle the tractor, plaintiff ordered and purchased the same from said firm on August 6, 1917. The machine in question was taken to plaintiff's farm, and a demonstration with it was made in plaintiff's presence, after which he purchased it. Shap Hunter, an officer of the Hunter Supply Company, was well acquainted with the character of the soil on plaintiff's farm, and knew what use plaintiff wanted to make of the tractor.

Plaintiff, on cross-examination, was asked concerning the superior knowledge, if any, of the defendant with respect to the tractor, and made answer as follows:

"I have known Shap and Sam all my life; knew they had no expert knowledge about tractors; I knew they didn't know anything about tractors, just like myself. They didn't know any more about what sort of a tractor was adapted to this country than myself. They didn't know an inclosed tractor was necessary."

"Shap and Sam," referred to in plaintiff's said testimony, were Shap and Sam Hunter. They were the only officers or persons connected with the Hunter Supply Company mentioned in the evidence.

The evidence further discloses that, after the plaintiff had plowed with the tractor for a day or two, he had trouble with the machine. The cause of the trouble was stated by plaintiff in his testimony as follows:

"Had the tractor at home a week or 10 days or two weeks before I used it. I think took it out and tried to plow, but could not plow with it 2 days. The second day began to have valve trouble, supposed to come from a leaky valve; those valves were exposed, had no cover on them, and sand would get in the valve rod, and the constant knock would wear those valves and she would miss fire, until the carburetor blowed out, or the valves out, and set the carburetor on fire; once it blowed the head of the valve clear off. I came in and sent for Mr. Kohn; saw Shap, the manager of the farm department of the defendant company, and after I told him he said, `We will have to get a new valve and get old man Kohn down here.' I got Mr. Kohn again; he stayed there 8 or 0 days waiting for repairs. After he got the repairs it ran about like it did the other time; a day and a half or 2 days is as much as I ever did get out of it."

Agents of the Waterloo Gasoline Engine Company repaired the machine on several occasions, so that plaintiff could use it, but the improvement was only temporary. Plaintiff labored with the tractor for 6 weeks; during that period he managed to plow 80 acres of ground. Finally, shortly after the last unsuccessful attempt of the agent of the Waterloo Gasoline Engine Company to remedy the defect in the "engine, plaintiff concluded to return the machine to the defendant, and he did tender the tractor to it, and demanded the return to him of the purchase price paid therefor. The defendant refused to accept said tractor, and refused to return the purchase price so paid.

Mr. Walker, a machinist, representing the Waterloo Gasoline Engine Company, examined the tractor in question after plaintiff purchased it. At the trial plaintiff's counsel inquired of a witness what Walker had said concerning the machine; defendant's counsel objected to the inquiry, for the reason that what the machinist may have said was not binding on the defendant. The court sustained the objection, and plaintiff excepted. Appellant contends here that said ruling of the court was erroneous.

The ruling of the court on the objection made was clearly right. No showing was made that Mr. Walker had any connection whatever with the defendant; such statements, therefore, were not binding on it, and were hearsay testimony.

Appellant's counsel next earnestly...

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