Major v. Hast

• Decision Date: 06 June 1924
• Docket Number: No. 18366.,18366.
• Citation: 263 S.W. 466
• Parties: MAJOR v. HAST.
• Court: Missouri Court of Appeals

263 S.W. 466

MAJOR v. HAST.

No. 18366.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Rehearing Denied June 24, 1924.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Suit by Alex Major against H. L. Hast. Judgment for defendant, and plaintiff appeals. Affirmed.

George C. Mackay and W. G. Carpenter, both of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

DAUES, J.

This is a suit in replevin. Plaintiff lost below and in due course has appealed. No question is raised on the pleadings, and the facts are about as follows: The defendant owned a stock of goods composed chiefly of toys, together with a quantity of machinery used for the manufacturing of wooden toys. The whole outfit is estimated as about 60 wagonloads. Plaintiff, through his son, entered into a contract with Hast, the defendant, on December 11 1921, to exchange or barter for the toys and machinery; the terms being that plaintiff was to give an automobile, estimated at a value of $750, and $250 in cash, in exchange for the toys and machinery. The agreement, in writing, is as follows:

                               "St. Louis, Mo., Dec. 11, 1921
                

"Sold to Alex H. Major, Jr., all the material, goods, and machinery as per invoice given by him to Mr. Chapman, not including post drill, for the sum of $1,000, of which $50 is paid and accepted today by H. L. Hast and the balance to be paid as follows: $200 in cash and a 1920 `Oldsmobile sedan, 6 cylinder, now located at 3814 Washington Ave., to be paid next Tuesday. Said automobile to be in perfect running

                order.                         H. L. Hast."
                

The number, 3814 Washington avenue, doubtless should be 3914 Washington avenue.

It appears that the $250, after some difficulty with reference to the cashing of certain checks, was paid in cash by plaintiff to defendant. Following this, plaintiff sent wagons to the defendant's place of business and began hauling away the toys and machinery. After several loads had been hauled, the defendant stopped plaintiff from hauling any more goods because the automobile which plaintiff was to turn over in the trade had not been delivered to the defendant. Plaintiff thereupon delivered an automobile to the defendant, at which time a bill of sale was made out, which is as follows:

"Know all men by these presents, that I, Alex H. Major, of the city of St. Louis, state of Missouri, for and in consideration of the sum of seven hundred and fifty ($750.00) dollars, the receipt of which is hereby acknowledged, do by these presents bargain and sell, unto H. L. Hast of the city of St. Louis, state of Missouri, the following described personal property, to wit: One Oldsmobile sedan, fully equipped, factory number 190762. And I hereby certify that I am the owner thereof, and have full right and title thereto, and authority to sell and dispose of the same, and that the above-described property is now free and clear of all liens and incumbrances of every kind, except nothing.

"In witness whereof, I have hereunto set my hand this 13th day of December, 1921.

                                         "Alex H. Major
                

"Signed and delivered in presence of A. H. Major, Jr."

The loading and hauling again started, and about five loads were hauled on that day. On the following morning the wagons came to defendant's place to begin further hauling, when Hast stopped the hauling, giving as his reason for so doing that the automobile turned over to him on the previous day was not a 1920 model Oldsmobile, but was a 1918 model, which he insisted was almost worthless. The contract for the barter of the goods, as noted, called for a 1920 model.

The record contains much testimony as to what representations were made with reference to the model of the car. Plaintiff claimed that he told defendant he did not know in what year the car was made, and defendant testified to exactly the contrary. It is defendant's evidence that he accepted the automobile upon the assurance of plaintiff, and with the distinct understanding and condition that if the automobile was not a 1920 model, defendant would stop any further removal of the toys and chattels, and there was to be no trade. Defendant said he made an investigation as to what model the machine was, and found it was a 1918 model, worth from one-third to one-half of a 1920 model, and that as soon as he discovered that the machine was not the car to be turned over to him under the contract, he refused to go ahead with the barter. The defendant tendered the machine back and demanded that plaintiff deliver to him a machine of the 1920 model, which plaintiff failed to do. Thereupon plaintiff brought this replevin suit for the remainder of the toys then in defendant's possession. The cause was tried to a jury, resulting in a verdict for defendant, fixing the value of the property under the replevin at $1,000.

The record is long and involved, but when narrowed to the real issues in the case the questions are few and comparatively simple. It is first insisted by appellant that the court erred in giving the following instruction on behalf of defendant:

"The court instructs the jury that if they find from the evidence that it was agreed between defendant and plaintiff that the defendant was to sell the property herein sued for and other property mentioned in the evidence to plaintiff, and was to receive therefor $250 in money and a 1920 Oldsmobile sedan six-cylinder automobile, and that said automobile was to be in perfect running order, and that such an automobile was not tendered to or delivered to defendant, but that instead an Oldsmobile sedan automobile was delivered to him by plaintiff as and for the Oldsmobile sedan 1920 six-cylinder automobile in such agreement, and that such automobile so delivered was an automobile which was a 1918 model and was not a 1920 Oldsmobile sedan six-cylinder automobile, and that said 1918 automobile was of less value than a 1920 Oldsmobile six-cylinder sedan, and at the time of such delivery the defendant did not know that said automobile was a 1918 model, and that plaintiff represented it to be a 1920 automobile, and that defendant relied on said representation, and in reliance thereon Permitted the plaintiff to take part of the goods agreed to be sold, and that thereafter defendant learned that said automobile was not a 1920 but was a 1918...