J. A. Tobin Const. Co. v. Davis

• Decision Date: 18 February 1935
• Docket Number: No. 18258.,18258.
• Parties: J. A. TOBIN CONST. CO. v. DAVIS et al.
• Court: Missouri Court of Appeals

81 S.W.2d 474

J. A. TOBIN CONST. CO. v. DAVIS et al.

No. 18258.

Kansas City Court of Appeals. Missouri.

February 18, 1935.

Rehearing Denied April 1, 1935.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be published in State Reports."

Action by the J. A. Tobin Construction Company against A. A. Davis and another, doing business under the name of A. A. Davis and Company. Judgment for plaintiff, and defendants appeal.

Reversed and cause remanded.

Ryland, Stinson, Mag & Thomas and Robert E. Rosenwald, all of Kansas City, for appellants.

Roy W. Crimm, of Kansas City, for respondent.

REYNOLDS, Commissioner.

This is an action by plaintiff against the defendants for the sum of $2,986.10 for damages for an alleged breach of warranty made, which warranty was to the effect that certain road paving machinery and equipment were in serviceable condition for use when sold and delivered by defendants to the plaintiff.

From an adverse judgment upon trial before a jury in favor of the plaintiff in the sum of $1,700, the defendants, after unsuccessful motions for a new trial and in arrest, prosecute this appeal.

The petition alleges that about August 15, 1929, the defendants sold to plaintiff certain road paving machinery and equipment, including 4,000 feet of concrete forms constructed of metal, one Blaux Knox weighing bins and scales, one No. 60 Caterpillar tractor, one Northwestern No. 4 crane, one center strip, one straight edge, one quadruple pump, and a large quantity of 2-inch iron pipe, and represented the same to be in serviceable condition; that, by a written agreement between plaintiff and defendants dated August 15, 1929, it was expressly provided that it was understood by all parties that such equipment, including the articles above enumerated, was to be in serviceable condition and defendants would load such equipment so purchased on railroad cars at Kinney, Tex., Newbern Tenn., and Hickman, Ky., and ship the same to plaintiff at La Cygne, Kan., where plaintiff expected and intended to use the same in the construction of a highway paving contract, of which fact plaintiff at the time advised the defendants; that, relying upon said representation and the agreement of the defendants that the said equipment was in serviceable condition, plaintiff paid for the same and received the same from the defendants at La Cygne, Kan.; that, after the delivery of the same, the plaintiff found the last above-enumerated items of said machinery and equipment were not in serviceable condition as represented and contracted for. The particulars as to each and the damage claimed by plaintiff with reference to each are set out in the petition.

It further alleges that, by reason of all of the matters complained of therein, plaintiff had been damaged in the sum of $2,986.10, for which it prays judgment. It sufficiently states a cause of action for damages for the breach of warranty complained of.

The answer is a general denial.

The contract for the sale, specifying the items and prices of the property sold and embodying the alleged warranty of which a breach is complained, was reduced to writing and signed by the parties. It appears in evidence, as Plaintiff's Exhibit 1, and is as follows, omitting caption and signatures:

                                      "Kansas City Mo
                                      "August 15, 1929
                

"Whereas, A. A. Davis and Company has sold to the J. A. Tobin Construction Co. some paving equipment, a list of which is attached hereto, or as follows:

                4 30'×20' tarpaulins,      $17.50 each     $   70.00
                31,680' 2" pipe               .09 per ft.   2,851.20
                small contractors tools, 50¢ on
                  dollar                                      500.00
                1 Karr planer (mixer attachment)               75.00
                1 Karr form grader                            600.00
                1 Karr subgrader                              250.00
                4000 ft. 9" forms           @ 40¢ per ft.   1,600.00
                2 water pumps                               1,250.00
                1 clamshell bucket                            300.00
                1 Ord finisher                              1,200.00
                1 Northwestern #4 Crane                     7,500.00
                1 27E Red Mixer 4 cyl.                      2,000.00
                1 27E Rex Mixer 6 cyl.                      6,000.00
                1 60 Caterpillar tractor                    1,800.00
                1 12' blade                                   750.00
                Blaux Knox weighing bins and
                  scales                                      500.00
                

"It is understood and agreed that A. A. Davis and Company is to load this equipment on cars at the places where it is now located, which is Kinney, Texas, Newbern, Tenn., and Hickman, Ky., without cost to J. A. Tobin Construction Co., and bill the same to J. A. Tobin Construction Co., at LaCygne, Kansas, in Linn County, Kansas, and that the J. A. Tobin Construction Co. is to pay all the freight and in the event that when the equipment arrives and if the J. A. Tobin Construction Co. should not want both mixers, they are to deliver one to Funkhouser Equipment Co.

"And it is further understood that A. A. Davis and Company is shipping all the small tools and supplies that are in their possession at the different locations, and the J. A. Tobin Construction Co. is to have as many or as much of the used small tools or supplies at 50% of the cost price, but if there are new parts, the J. A. Tobin Construction Co. is to pay the market price. There will be some supplies to use in paving; they are to pay the market price at place of delivery.

"In the event the J. A. Tobin Construction Co. does not want both pumps when they arrive, they are to deliver one to Funkhouser Equipment Co. in Kansas City. A. A. Davis and Company is shipping and selling to the J. A. Tobin Construction Co. a caterpillar tractor which they have not thoroughly examined, and in the event that this caterpillar is not in good working order, A. A. Davis and Company will put it in that condition, or J. A. Tobin Construction Co. may deliver it to Funkhouser Equipment Co. and should any of the above equipment be delivered to Funkhouser Equipment Co., it is to be done at the expense of the J. A. Tobin Construction Co. and they are to be credited with the amount designated in this instrument for either piece of this equipment described in this agreement. It is understood that the J. A. Tobin Construction Co. has examined all the rest of the equipment and is satisfied with its condition.

"A. A. Davis and Company is collecting for only 4000' of forms, and if there should be more or less, they are to pay 40¢ per lin. foot for all forms shipped.

"It is understood by all parties that this equipment is to be in serviceable condition except that the form grader does not have a radiator.

"All equipment sold is free and clear of encumbrance.

"The amount listed totals $27,246.20; the agreement is that J. A. Tobin Construction Co. pays Twenty seven thousand Dollars for same, as follows: Three thousand Dollars cash, receipt of which is hereby acknowledged; Four thousand Dollars with sight draft attached to bill of lading on a part of the equipment; and the J. A. Tobin Construction Company agrees to pay said draft on arrival of car; the balance of Twenty Thousand Dollars represented by eleven promissory notes for Sixteen hundred and sixty dollars and sixty-six cents each, and one note for Sixteen hundred Sixty dollars and seventy-four cents, all dated August 15, 1929, payable consecutively monthly beginning September 15, 1929, with interest at seven per cent. per annum, signed by J. A. Tobin Construction Co. and endorsed by O'Connor Bros. Construction Co. and Boyle Construction Co.

"In Witness Whereof the A. A. Davis and Company, a partnership consisting of A. A. Davis and E. D. Davis, partners, the seller, and J. A. Tobin Construction Co., corporation, the buyer, have subscribed their names to duplicate copies hereof, both originals, the day and year first above written."

Further evidence in the record tends to show that the plaintiff was a paving, grading, and public works contractor, with a contract for the construction of nine miles of concrete highway at La Cygne, Kan. Having no paving outfit at the time available for this work, it made inquiries as to used paving outfits that could be bought and was advised that the defendants, contractors located at Oklahoma City, Okl., had machinery and equipment of that nature for sale. Such equipment of defendants was located at three places: Newbern, Tenn.; Hickman, Ky.; and Kinney, Tex. Plaintiff got in touch with A. A. Davis, one of the defendants, and arranged for him to meet its representatives and show them the machinery and equipment they had. J. S. O'Connor, associated with plaintiff, accompanied by E. M. Critchfield, a contractors' supply salesman, were sent to the three places where defendants' machinery and equipment were stored, where they met defendant A. A. Davis and looked the same over with him. They found the same stacked in yards near railroad sidings. None of the machinery was in operation. They asked to see it in operation; but it had been idle for some time; and, as there was no gas or oil or person present to operate it, they did not get to see it in operation. They examined the same as well as they could; and, from all appearances, it looked satisfactory and in good condition. Among other things, they saw 10,000 feet or more of metal paving forms stacked in a large pile about 8 feet high and 50 feet square in one of the storeyards. They could observe only the outer ones. O'Connor testified that they were apparently all right and that he reported to J. A. Tobin, president of the plaintiff corporation, that he thought they would be all right and in workable condition.

Critchfield stated that he had looked the machinery over and was satisfied with the appearance of the same and made a report to Tobin of the machinery he saw and told him that he thought it would be a good buy at the price at which Davis was willing to sell it. His opinion...