International Harvester Co. of America v. Capps

• Decision Date: 12 July 1918
• Docket Number: No. 15014.,15014.
• Parties: INTERNATIONAL HARVESTER CO. OF AMERICA v. CAPPS.
• Court: Missouri Court of Appeals

205 S.W. 252

INTERNATIONAL HARVESTER CO. OF AMERICA v. CAPPS.

No. 15014.

St. Louis Court of Appeals. Missouri.

Argued and Submitted June 4, 1918

Opinion Filed July 12, 1918.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by the International Harvester Company of America against A. L. Capps, wherein defendant filed counterclaim. Judgment for defendant, and plaintiff appeals. Affirmed.

Robt. L. Motley and Tom B. McGinnis, both of Bowling Green, for appellant. Pearson & Pearson, of Louisiana, Mo., for respondent.

REYNOLDS, P. J.

Appellant, plaintiff below, brought this action to recover on two notes, each for the sum of $500, executed by defendant.

The answer, admitting the execution of the notes, sets up that they were executed and delivered to plaintiff by defendant, in consideration of the purchase of a five-gang, fourteen-inch, bottom plow and one Mogul twenty-horse power kerosene and gasoline traction engine; that defendant giving toe order for the purchase of this machinery, plaintiff had guaranteed that it would do good work and had sufficient power, or, to quote the guarantee, plaintiff warranted the "thresher, attachments and engine to be well made, of good material, and durable with proper care, and to do good work if properly operated by competent persons, with sufficient power and under the printed rules and directions of the manufacturer intelligently followed." This warranty is evidently a stock form and while calling for a "thresher," was used and substituted by the parties to cover the gang-plow, engine, etc. No point is made on this variance. The defendant sets up in his answer that the machinery did not do good work and did not come up to the guarantee and warranty, and averred that plaintiff had stated that if it did not do so he would make it good or refund defendant's money; that on the strength of the warranty mac promise he had paid $250, one of the notes, for which he sues by way of counterclaim, denying his liability on the two notes in suit.

There was a general denial filed by way of reply.

There was substantial evidence on the part of the defendant, tending to prove that the engine furnished could not pull five plows even in 3½ or 4 inch depth of plowing; that with four plows it did fairly good work; with three plows good work but only to the depth of 3½ or 4 inches. There was evidence that the proper depth for plowing in this vicinity and on the farm of this defendant would be from 5 to 6 inches. Plaintiff objected to this testimony, on the ground that the warranty did not provide for any depth of plowing. When the machinery was first delivered to plaintiff on his farm or within a few miles of it—in Pike County—it was found, according to plaintiff's testimony, that it would not work with any satisfaction and would not operate the five plows, even at a depth of 3 or 4 inches. The defendant had first spoken to a Mr. Huckson, of Hannibal, whose firm, it appears, had the agency for the sale of these machines in goat vicinity, about his desire to buy a gang-plow and engine. A few days afterwards Mr. Huckson sent a Mr. Gordon, as a representative of the plaintiff, to defendant's farm to see him about it. The result of Gordon's interview with plaintiff was first to enter into a contract for an engine of less than twenty-horse power, which it was thought would pull the five-gang plow. About a week afterwards Mr. Gordon returned to defendant's farm and said that the engine he had specified in that contract was not powerful enough to pull a five-gang plow and he would furnish a twenty-horse power Mogul that would have plenty of power to pull the five plows. Accordingly they rewrote the first contract into the contract now in suit. About 10 days after entering into the contract the plows and engine arrived near defendant's farm, and defendant went there and paid the freight on them. They had been sent through the Huckson Hardware Company at Hannibal, having been consigned to it, and the Huckson Company notified defendant of that and that he could take them. It appears that the machinery was delivered at the railroad station at Saverton, where defendant went to see it. Defendant then executed a mortgage covering the property, as also the notes, and took the engine out to the farm. Mr. Gordon and a man named Johns, a machinist, sent by plaintiff, was there, rigged it up, and started it. They started plowing with five plows, when, according to plaintiff, the engine struck, after going about 10 feet. The parties all concluded that the trouble was that the plows had not been scoured, being painted. They then scoured the paint from the plows, went into a ten-acre piece of fall wheat that had been frozen out, started with the five plows and dropped first one on one side and tried to pull four plows. They had started out with oil. Plaintiff suggested that they substitute gasoline, which they did, and it worked a little better but would not pull but four plows and stalled half the time at that. They would plow 4 or 5 inches. They concluded it needed a rim, and plaintiff's agents furnished one a few days later and tried it with that. Still it did not pull five plows. Three or four days after that Mr. Huckson of the hardware firm, through whom the plows had been purchased, went to defendant's farm taking with him a man to put the machine in condition, but their efforts did not succeed in making it do any better, and plaintiff said to Gordon, the man through whom he had executed the contract, that he had bought a five-gang plow and engine to pull it; that he would not accept the plows in the condition they were; that they were not doing the work claimed; would not...