Kelly v. Times Square Automobile Company
| Decision Date | 21 April 1913 |
| Citation | 156 S.W. 62,170 Mo.App. 64 |
| Parties | H. B. KELLY and W. G. KELLY, Partners doing business as KELLY & KELLY, Respondents, v. TIMES SQUARE AUTOMOBILE COMPANY, a corporation, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
Judgment affirmed.
Reed & Harvey for appellant.
(1) (a) It cannot be claimed in this case that there was any express warranty that the machines were fit for any particular use or that they could be resold. (b) The law does not imply a warranty that an article is fit for a particular intended use, nor that it can be resold. Fairbanks v Baskett, 98 Mo.App. 69; Davis v. Mallory, 137 F. 332, 69 L. R. A. 973; Hotel Co. v. Wharton, 79 F 43. (c) There is no implied warranty that a second-hand article is fit for its intended use. Norris v. Reinstedler, 90 Mo.App. 626; Ramming v. Caldwell, 43 Ill.App. 175; Joy v. Bank, 32 Tex. Civ. App. 398, 74 S.W. 325. (2) The court commited error in admitting testimony as to the condition of the machines when they reached North Dakota. 35 Cyc. 399; Mann v. Everston, 32 Ind. 355; Leggatt v. Brewing Co., 69 Ill. 158.
Ed. E. Aleshire for respondents.
Appellant seems to go upon the theory that there was no implied warranty as to condition of these cars and that in the absence of such implied warranty they could not be held responsible for cars in bad condition. We have examined Fairbanks v. Baskett, 98 Mo.App. 69, and Morris v. Reinstedler, 90 Mo.App. 626, and have been unable to find anything in these cases that can in the least affect plaintiff's right to a recovery. While the petition states that the cars were purchased for the purpose of being sold to farmers and the evidence of Mr. McClellan makes the same statement, it seems to us that appellant's objection to the instruction is not warranted. We take it for granted that automobiles of this kind and character when they are purchased are to be sold and it is apparent even to a nonexpert that they are to be sold for the purpose of being used. The evidence in this case shows that plaintiff advised defendant that the cars were going to be shipped to North Dakota to be sold to farmers and defendant agreed with them that they would sell well to the farming trade.
This suit is over the sale of some second-hand automobiles by defendant to plaintiffs. By the terms of the purchase defendant agreed to repaint the cars and put them in good running condition f. o. b. cars at Kansas City, Missouri. The evidence of the negotiations between the parties resulting in the sale shows that the automobiles were bought to be shipped to North Dakota and there retailed. The petition so alleges and the evidence discloses that defendant was fully aware of this fact and assured plaintiffs it would put the machines in good running condition on board the cars for shipment to that State for such purpose.
The suit is for damages for failure to put the cars in good running order on board the cars at Kansas City, plaintiffs claiming they were not in such order when shipped, and defendant insisting that they were. This disputed question was submitted to a jury and a verdict was returned in favor of plaintiffs assessing their damages at $ 873.
There are two assignments of error, one as to an instruction given for plaintiffs and the other as to the admission of evidence offered by plaintiffs to show the bad condition the automobiles were in when they reached their destination in North Dakota. This evidence tended to show, and was offered for the purpose of showing, the running condition of the automobiles when put on board the cars at Kansas City. The condition of the machines when received in Dakota was of such a nature that they must have been in that condition when shipped by defendant at Kansas City, and was not such a condition as would or might be caused by injury received in transit or adjustment unsuited to the change in climate. This being so, such evidence was clearly admissible to show that the automobiles were not in good running condition when placed on board the cars at Kansas City. [Atkins Bros. v. Grain Co., 119 Mo.App. 119, 95 S.W. 949, l. c. 123; Neil v. Cunningham, 149 Mo.App. 53, 130 S.W. 503.]
The instruction complained of told the jury, in effect, that if they believed plaintiffs purchased the automobiles from defendant and paid the price there for and that defendant agreed to repaint said automobiles and put them in good running condition f. o. b. cars at Kansas City Missouri, and that pl...
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