Laumeier v. Dolph

• Decision Date: 06 June 1910
• Parties: LAUMEIER et al. v. DOLPH et al.
• Court: Missouri Court of Appeals

130 S.W. 360

145 Mo. App. 78

LAUMEIER et al. v. DOLPH et al.

Springfield Court of Appeals. Missouri.

June 6, 1910.

On Motion for Rehearing, July 19, 1910.

1. SALES (§ 425) — BREACH OF WARRANTY — REMEDIES OF BUYER.

Where the seller has been guilty of a breach of warranty, the buyer may keep the chattel and sue for the difference in value between the chattel as warranted and its actual value, or he may, within a reasonable time, reject and return the chattel to the seller, and recover the full amount paid on account of the purchase price.

2. SALES (§ 425) — BREACH OF WARRANTY —REMEDIES OF BUYER.

Where a buyer is persuaded by the seller to keep the chattel for a while to give it a proper trial, and he does so, and it nevertheless does not come up to the warranties, he may still return the same and recover the amount paid on account of the purchase price.

3. SALES (§ 273) — PRINCIPAL AND AGENT (§ 104)—IMPLIED WARRANTY.

The seller impliedly warrants that the chattel is fit for the purpose for which it was intended, and no special authority in the agent who made the sale to give such warranty need be shown.

4. PRINCIPAL AND AGENT (§ 161) — REPRESENTATIONS OF AGENT — CONCLUSIVE ON SELLER.

Where the seller kept the fruits of a contract of sale made by his agent, he cannot repudiate the representations of the agent made to effect the sale.

5. SALES (§ 261) — REPRESENTATIONS OF AGENT—POSITIVE WARRANTIES.

Where the agent of the seller made positive representations as to the quality and condition of the chattel sold, with the intent that they should be relied on, and they were relied on by the buyer, such representations, in law, amount to positive warranties.

6. PARTNERSHIP (§ 219) — ACTIONS AGAINST PARTNERS—JUDGMENT.

Under Rev. St. 1899, § 624 (Ann. St. 1906. p. 649), providing that, in actions on contract against several defendants, the plaintiff shall not be nonsuited because of failure to prove that all the defendants are parties to the contract, but may have judgment against such as he shall

prove to be parties thereto, in an action against an alleged partnership for breach of warranty of a contract of sale, a judgment against one of the alleged partners was proper.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Christiane Laumeier and another against Clifford M. Dolph and another. Judgment for plaintiffs, and defendant Dolph appeals. Affirmed. Certified to the Supreme Court on rehearing because of conflict of decisions.

Frank K. Ryan, for appellant. Schnurmacher & Rassieur, for respondents.

NIXON, P. J.

Respondents, mother and son, on January 13, 1907, bought from the Myronda Motor Car Company in the city of St. Louis an automobile manufactured by the Lozier Motor Company and known as "No. 417." The purchase price was $6,000, which was paid by the joint check of the respondents to the order of the Myronda Motor Car Company, dated January 23, 1907. On September 14, 1907, plaintiffs brought this suit against Clifford M. Dolph and William Patterson, alleging in their petition that said defendants were copartners in business, engaged in the sale of automobiles or motor cars and doing business under the name of Myronda Motor Car Company. The petition further alleges that on or about the 13th day of January, 1907, defendants showed plaintiffs a certain automobile made by the Lozier Motor Company, and represented to plaintiffs that said automobile was of the latest 1907 pattern as made by the Lozier Company, and that all of its parts were of the latest improved kind as contained in a certain car of the same make then on exhibition in defendants' warerooms, and that the said automobile which the defendants offered to sell plaintiffs was perfect in every respect, and of 40 horse-power capacity, and that the same would in all respects run to the entire satisfaction of the plaintiffs; that the defendants also guaranteed that if the said automobile was not in every respect as represented, or if the same should thereafter prove defective, defendants would furnish plaintiffs an entire new, complete, and perfect automobile, chassis and limousine body, of the 1907 pattern as made by the Lozier Company. The petition further alleged that the plaintiffs purchased the said automobile upon the representations and under the guaranties above mentioned; that, immediately upon plaintiffs taking possession of the same, it developed that the said representations made by the defendants were not true, but that defendants induced plaintiffs to keep and operate the machine with the view of overcoming the defects by actual operation, and assuring plaintiffs that, if such defects were not overcome, the defendants would furnish plaintiffs an entire new chassis and body; that plaintiffs continued to operate said automobile from time to time until the 15th day of March, 1907, when it completely broke down and could not be operated, and was turned over by plaintiffs to defendants, who ever since said date have had possession thereof. The petition further sets out in detail wherein the said automobile was not as represented, in that certain of its parts were damaged or defective, or were different from what they were represented to be by the defendants; that said defects were of such a nature that it was impossible for plaintiffs to operate the automobile satisfactorily; and that defendants were informed of said defects from time to time, but failed or were unable to remedy the same; that defendants, in accordance with their said guaranty, from time to time promised plaintiffs a perfect automobile, but failed to furnish same; that by reason of defendants' breach of their said contract, and by reason of their said misrepresentations in regard to the automobile so sold by them, plaintiffs were damaged in the sum of $6,000, for which they asked judgment. Defendant Dolph filed an affidavit denying the existence of any partnership between himself and defendant Patterson, and also filed a general denial as his answer. Defendant Patterson filed simply a general denial. The evidence of the plaintiffs tended to support the substantial allegations of their petition, and tended to show that the plaintiffs purchased the automobile of the Myronda Motor Car Company, which, the evidence shows, was composed solely of defendant Dolph. The jury returned a verdict for plaintiffs for the sum of $6,000, and the case is here on the appeal of defendant Dolph.

1. The only serious legal question raised in this case, outside the alleged defect of parties, which will be considered, is as to the measure of damages.

The trial court instructed the jury that, if they found the issues for the plaintiffs, the measure of damages which the plaintiffs would be entitled to recover would be "the reasonable value of such new automobile at the time of the demand and refusal to deliver the same." Appellant claims that this was an erroneous statement of the law governing the facts of this case, and that the true rule of law which should have been declared by the court is that, where the buyer of a chattel relies on an express warranty and accepts the chattel, his measure of damages in an action for a breach of the contract is the difference in value of the chattel as warranted and the chattel sold at the time and place of sale, and that, on that account, the measure of damages as declared by the court in its instruction for the plaintiffs was erroneous, and that the instruction tendered by the defendant presenting his view of the law should have been given instead. The instruction asked by the defendant has no application to the facts of this case. Recovery is sought by plaintiffs in this case on the theory that, within a reasonable time, the plaintiffs, after the purchase of the automobile, upon defendant's warranty, the car not proving to be of the character and kind warranted, rejected and returned the car to the seller. Where the seller has been guilty of a breach of warranty, the purchaser has two remedies: (1) He may take and keep the chattel and sue for damages growing out of the breach of warranty. In such case, the purchaser may recover the difference in value between the chattel as warranted and its actual value in view of its defective condition. (2) He may, within a reasonable time, reject and return the chattel to the seller. In that case, the purchaser may recover the full amount paid on account of the purchase price. The plaintiffs in this action chose to pursue the latter course. They rejected the automobile and returned it to the seller, and were therefore entitled to recover the full amount paid on account of the purchase price. Phares v. Jaynes Lumber Co., 118 Mo. App. 546, 94 S. W. 585; Ferguson Implement Co. v. Parmer, 128 Mo. App. 300, 107 S. W. 469; Hayner v. Churchill, 29 Mo. App. 676, 683; St. Louis Brewing Ass'n v. McEnroe, 80 Mo. App. 429; Brown v. Weldon, 99 Mo. 564, 568, 13 S. W. 342.

The petition in this case charges that the plaintiffs were induced by the defendants to keep the automobile and to give it further trial; that they, acting under defendants' instructions, made several efforts to make it work; that it proved to be defective and comparatively worthless and did not come up to the warranties; and that thereafter ...