J. B. Colt Co. v. Preslar

• Decision Date: 13 August 1925
• Docket Number: No. 3783.,3783.
• Citation: 274 S.W. 1100
• Parties: J. B. COLT CO. v. PRESLAR.
• Court: Missouri Court of Appeals

274 S.W. 1100

J. B. COLT CO. v. PRESLAR.

No. 3783.

Springfield Court of Appeals, Missouri.

August 13, 1925.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by the J. B. Colt Company against J. H. Preslar. From a judgment for defendant, plaintiff appeals. Affirmed.

Fred L. Byrkit, of Kennett, for appellant.

BRADLEY, J.

This is a suit on a promissory note. The jury found for defendant, and, failing to get a new trial, plaintiff appealed.

The note is for $249.80, dated November 11, 1919, and clue one year after date. Defendant admitted the execution of the note, but sought to defeat recovery on the ground of failure of consideration. The note was given for a light plant purchased from plaintiff by defendant.

Plaintiff assigns error (1) on the refusal of the court to direct a verdict in its favor; (2) on the instructions; and (3) on the remarks of counsel.

Plaintiff introduced the note and the contract as its case in chief. The contract of purchase contained the following warranty:

"Warranty: It is agreed that in accepting this order the company warrants the apparatus furnished to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and that it is on the permitted list of the National Board of Fire Underwriters."

The contract also contained this provision:

"This order shall become a contract between the purchaser and the company upon acceptance thereof in the space below by an officer or credit manager of said company; it being understood that this instrument upon such acceptance covers all of the agreements between purchaser and the company, and that no agent or representative of the company has made any statements or agreements verbal or written, modifying or adding to the terms and conditions herein set forth."

The evidence shows that defendant sent two men to install the plant, and that they installed it. Defendant testified that:

"It worked very well for about three weeks, and then it got so the light got dim, and it would go out, and it got so it would not work at all."

Defendant further testified:

That he tried for three or four months to use the plant. "It got so whenever I did fill it up, the carbide would just run right through and fill the room so full of gas you could not stay there, and I got afraid of it. I did not know about the working of the plant; I did not know machinery at all. I did not know what was the trouble with it. The lights got dim and would go out, and they did not give any light at all. I used it between three and four months."

On cross-examination, defendant testified:

"They installed the plant about December, 1919. I signed a contract in November, 1919. I signed the contract about a month or so before they shipped this plant. I asked them how to manage the plant in February, 1920. It had got so we could not use it, and I wanted some instructions as to how to use it. I wrote them a letter before that to send a party down. I do not know why I did not say something about the kind of a plant it was in this letter, that it was not working right. My wife might have written a letter like that; she did write several about it. I did not keep any copies of those letters. I did not say anything about the plant not working properly in February, 1920 not in that letter, but my wife did write several letters. I signed an installation report in which you said the agent installed this plant, and it works satisfactory for about three weeks. I did not remember that I signed the statement and report that it worked satisfactory. It is not a fact that I never made any complaint about this plant until the people began to want their money and then wrote this letter. My wife must have written them three or four letters in the year of 1920, stating that we could not use this plant, and that we would like to ship it back to them."

Defendant's wife testified as follows:

"The plant purchased by my husband and installed there and in operation did not work very much any time. For the first three or four weeks it did very well, and then from then on the lights would grow dim, and the carbide would just all run or feed out at once, and the room would get full of gas, and we just could not use it because it was not any account, was all I know. We used it all put together about six months maybe, but then we did not use it six months straight going. At last it got so it would go out. It just fed the carbide; we could not keep it in carbide; it fed more and more all the time. The more we tried to use it, the carbide would just run through. The company furnished a book of instructions which we followed. The book of instructions did not help any, did not seem to do any good. We wrote the company about it, but the company did not answer."

Plaintiff introduced in rebuttal evidence tending to show that the plant respecting material and workmanship measured up to the express warranty in the contract. Also plaintiff introduced two letters written for defendant by his wife after the installation of the plant. The first one was written February 24, 1920, and the second one March 3, 1922. No complaint respecting the service of the plant is made in either of these letters. In the first one defendant merely states that he is returning a stove and wants to exchange it for a smoothing iron. He adds a postscript asking for instructions "as to how to operate your make of light plant." Defendant makes reference to this letter in...