Jasper County Bank v. Barts
| Citation | 109 S.W. 1057,130 Mo.App. 635 |
| Parties | JASPER COUNTY BANK et al., Respondents, v. P. A. BARTS, Appellant |
| Decision Date | 06 April 1908 |
| Court | Court of Appeals of Kansas |
Appeal from Bates Circuit Court.--Hon. Charles A. Denton, Judge.
AFFIRMED.
Cause affirmed.
Silvers & Silvers for appellant.
(1) The question of whether or not the shredder fulfilled the warranty thereof was for the jury likewise, the question of whether or not there was a failure of consideration for the note sued on in count one was a question for the jury. Where there is any evidence from which a jury might find the fact necessary to a defense, the same should go to the jury. Thomas v. Express Co., 30 Mo.App. 86; Twohey v Fruin, 96 Mo. 104. (2) The defense of breach of warranty and failure of consideration are not inconsistent. Implement Co. v. Leonard, 40 Mo.App. 477; Murphy v. Gay, 37 Mo. 535. (3) In order to sustain the plea of failure of consideration to the first count of the petition (being on the note given for the expressly warranted machine), or to count two (being on the impliedly warranted machine), no delivery back of the machine need be shown. Danforth & Co. v. Crookshanks, 68 Mo.App. 311; Miles v. Withers, 76 Mo.App. 87; Implement Co v. Leonard, 40 Mo.App. 477; Kerr v. Haymaker, 20 Mo.App. 350; Compton v. Parsons, 76 Mo. 455; Laws of Missouri, 1905, p. 247, sec. 28; Johnson v Agricultural Co., 20 Mo.App. 100; Manley v Manufacturing Co., 103 Mo.App. 135; Tower v. Pauly, 51 Mo.App. 75; Brockhaus v. Schilling, 52 Mo.App. 73; June & Co. v. Falkinburg, 89 Mo.App. 571; New Birdsall Co. v. Keys, 99 Mo.App. 463; Osborn & Co. v. Henry, 70 Mo.App. 26.
Templeton & Hales for respondent.
(1) Appellant by his failure to comply with the terms of his written contract, in the absence of any allegation of fraud or mistake, had released the Parsons Band Cutter & Self Feeder Co. from all liability upon its warranties. Shearer v. Garr, Scott & Co., 90 S.W. 684; Case Threshing Machine Co. v. Hull, 73 S.W. 835; Haynie v. Manufacturing Co., 82 S.W. 532; Aultman v. McKinney, 26 S.W. 267; Equitable Co. v. Stevens, 60 S.W. 350; Harvesting Mach. Co. v. Mackey, 74 S.W. 388; Nichols-Sheppard Co. v. Rhoadman, 112 Mo.App. 299. (2) To the general rule that a defendant may decline to return an article which is alleged to be wholly worthless upon asking for a rescission there is a well-defined exception in those cases where the parties have by their contract stipulated for such return as a condition precedent, to the rescission, or as a remedy for the breach of warranty, or failure of consideration. Nichols-Sheppard Co. v. Rhoadman, 112 Mo.App. 299, 87 S.W. 62; Haynie v. Manufacturing Co., 82 S.W. 532, and other authorities cited under point four above.
--This is a suit on two negotiable promissory notes. The petition contains a separate count on each note. The first declares on a note for $ 465 executed October 3, 1905, due December 20, 1905, bearing interest at eight per cent per annum from maturity; the second one a note for $ 75 dated October 3, 1905, and due December 20, 1905, bearing interest at eight per cent per annum from maturity. These notes were made payable to the order of the Parsons Band Cutter & Self Feeder Company, a corporation of the State of Iowa and endorsed to the plaintiff before due. The consideration for the first mentioned note was what was designated as a "Success Shredder with Canvas Cover;" the consideration for the second note was what was called a "Wind Stacker or Shredder." The defendant having failed to pay the notes at maturity, the plaintiff instituted the suit to enforce their collection.
The company warranted that the shredder would serve the purpose for which it was intended as well or better than any other machine of like kind. It was one of the conditions however that if it did not come up to the warranty the defendant was to give notice of the fact to the company and return the machine to the place where he purchased it. The machine was bought from the general agent of the company at Kansas City Missouri. The defendant's testimony tended to show that the machine did not comply with the warranty, but instead of returning it to Kansas City he took it to Rich Hill and gave the company notice of the fact and asked instructions. The evidence tended to show that the plaintiff bank had notice of the failure of consideration of the note before purchase. The stacker for which the second note was given was...
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