Hunter v. Waterloo Gasoline Engine Co.
Decision Date | 08 November 1921 |
Docket Number | No. 16589.,16589. |
Citation | 237 S.W. 819 |
Parties | HUNTER v. WATERLOO GASOLINE ENGINE CO. et al. |
Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.
Ward & Reeves, of Caruthersville, and Riley & Riley, of New Madrid, for appellant.
Gallivan & Finch, of New Madrid, for respondents.
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:
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:
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:
"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:
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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