L. J. Smith Const. Co. v. Mullins

• Decision Date: 28 January 1918
• Docket Number: No. 12716.,12716.
• Citation: 198 Mo. App. 501,201 S.W. 602
• Parties: L. J. SMITH CONST. CO. v. MULLINS et al.
• Court: Missouri Court of Appeals

201 S.W. 602

198 Mo. App. 501

L. J. SMITH CONST. CO. v. MULLINS et al.

No. 12716.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by the L. J. Smith Construction Company against W. C. Mullins and the Southern Surety Company, in which defendants pleaded a cross-demand. Judgment for defendants on plaintiff's petition, and for plaintiff on defendant's cross-demand, and plaintiff appeals. Reversed and remanded.

McVey & Freet, of Kansas City, for appellant. Fyke & Snider and Morrison, Nugent & Wylder, all of Kansas City, for respondents.

BLAND, J.

On November 27, 1914, plaintiff, by a written lease, rented to defendant W. C. Mullins certain grading machinery, consisting of a steam shovel, dinkey engines, and dump cars. The property was to be used by said defendant in grading work located near the Union Station in Kansas City, Mo. It was expressly provided in the contract that the machinery was leased in the present condition thereof. A bond was executed for the faithful performance of the contract on the part of defendant Mullins, and signed by said defendant as principal and the defendant Southern Surety Company as surety. The machinery was delivered to defendant Mullins, and he used the same in this work for several months. Mullins paid more than $5,000 on the rental of this machinery, but did not pay all the rent stipulated to be paid in the contract. Plaintiff brought this suit for $728.36, the balance of the rent claimed to be due, and for $3,877.24 and interest, which plaintiff claimed was due it by reason of the property not being returned to plaintiff as provided in the contract; that is, in as good condition and repair as when received, ordinary wear and tear excepted.

The answer on the part of Mullins consisted of an admission of the execution of the contract, a general dental of all other matters alleged in the petition, and a cross-demand setting up that the machinery did not come up to an implied warranty that it was in reasonably good condition for the purposes for which it was leased, and to an express warranty that the machinery was in first-class condition; that plaintiff fraudulently concealed from Mullins that the machinery was old, worn, and out of repair, and asked damages in the sum of $7,500. The jury found for the defendants on plaintiff's petition, and for plaintiff on said defendants' cross-demand, and plaintiff has appealed. There was no appeal on the part of defendants.

Plaintiff complains of an instruction, given by the court, which told the jury in effect that, if they found from the evidence that the machinery was old and out of repair, and not in a reasonably fit condition for the work, and that defendant Mullins had paid plaintiff as rent all that the use of such machinery was reasonably worth, considering its defective condition (if it was defective), then plaintiff was not entitled to recover any further sum on account of the rent of said engines and appliances. This instruction, and similar instructions given on behalf of the defendants, were based upon an assumption by the court that the question of express and implied warranty connected with fraudulent concealment were in the case, which plaintiff strenuously contends were not.

It is the contention of the plaintiff that, because the contract provided that the machinery was leased "in the present condition thereof," there was an intention on the part of the parties that there should be no warranty, either expressed or implied. We believe this contention to be well taken. T...