Marth v. Wiskerchen

• Decision Date: 05 January 1915
• Docket Number: No. 13799.,13799.
• Citation: 186 Mo. App. 515,172 S.W. 410
• Parties: MARTH v. WISKERCHEN.
• Court: Missouri Court of Appeals

172 S.W. 410

186 Mo. A. 515

MARTH v. WISKERCHEN.

No. 13799.

St. Louis Court of Appeals. Missouri.

January 5, 1915.

1. JUSTICES OF THE PEACE (§ 90) — ACTIONS — PLEADING.

In a suit originating in justice court, no formality in pleading is required, and the statement is to be liberally construed.

2. JUSTICES OF THE PEACE (§ 98) — ACTIONS — PLEADING.

Under the direct provisions of Rev. St. 1909, § 7412, an instrument upon which suit in justice court is based should be filed with the statement.

3. ALTERATION OF INSTRUMENTS (§ 18) — ACTIONS — DEFENSES.

A memorandum of an agreement to purchase a traction engine, which was signed by the buyer, named the place at which was the engine. In a suit for the purchase price originating in justice court, the memorandum was not filed as an instrument sued upon. Held that, where the seller owned no other engine, an alteration of the memorandum as to the place of the engine did not deprive him of the right to recover on the contract.

4. SALES (§ 126) — RESCISSION — TIME FOR — "IMMEDIATELY."

Where an article does not comply with the terms of the sale, the buyer must immediately disaffirm and promptly notify the seller of his disaffirmance; the term "immediately" not meaning instanter, but within a reasonable time for disaffirmance under the circumstances.

5. APPEAL AND ERROR (§ 171) — CHANGE OF THEORY ON APPEAL.

In an action for the purchase price of an engine, where the case was tried below on the theory that it belonged to plaintiff, defendant cannot, on appeal, contend that it belonged to plaintiff's principal.

6. SALES (§ 127) — RESCISSION — SUFFICIENCY.

The purchaser of a traction engine from the general agent of a threshing company, on discovering that it did not comply with the terms of the sale, placed it on the right of way behind the store of the local agent and instructed him to inform the general agent. The engine was the private property of the general agent, and, though he was about the town, the purchaser made no effort to see him and notify him of his rescission. Held that, having made the local agent his agent for the purpose of giving notice of rescission, the purchaser could not, where notice was not seasonably given, defeat an action for the purchase price on the ground that the engine was not as represented.

7. SALES (§ 428) — ACTIONS — BREACH OF WARRANTY.

Unless set up by counterclaim, a buyer cannot, in an action for the purchase price, recover for a breach of warranty.

Appeal from Circuit Court, Lewis County; Chas. D. Stewart, Judge.

Action by H. C. Marth against Ed. A. Wiskerchen begun in justice court and appealed to the circuit court. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Hilbert & Henderson, of Monticello, R. J. McNally, of Ewing, and A. F. Haney, of Canton, for appellant. H. S. Rouse, of Monticello, E. R. McKee, of Memphis, and R. B. Noel, of Monticello, for respondent.

ALLEN, J.

This is an action to recover the purchase price of a traction engine alleged to have been sold and delivered by plaintiff to defendant. The cause originated before a justice of the peace, and found its way to the circuit court, where, upon a trial before the court and a jury, there was a verdict and judgment for defendant, and the plaintiff appealed.

On or about November 15, 1910, plaintiff, who was a general agent for the Advance Threshing Company, and who was then at Ewing, Mo., sold the engine in question to defendant for the sum of $150. It appears that a traveling salesman for another company learned that defendant wanted to purchase a secondhand engine, and that plaintiff had one, and brought the parties together. Plaintiff and defendant met the following day in the implement and harness store of one Henry Lesch, who was a local agent of the Advance Threshing Company, having been so appointed by plaintiff. After some discussion, the parties agreed upon a sale of the engine to defendant for $150, delivered at Ewing. Defendant thereupon signed a paper which (as it appears in the statement filed with the justice of the peace) is as follows:

                                   "Ewing, Mo., 11/15/1910
                

"This is to certify that the undersigned agrees to purchase and pay to H. C. Marth the sum of $150.00 in cash for the 12 H. P. Aultman & Taylor engine at Steffenville, delivered at Ewing, Mo., in running order and in good shape.

                                    "Ed. A. Wiskerchen."
                

It appears that the engine was then in fact at or near Steffenville, but that plaintiff had previously arranged to have it taken to Knox City and did not know whether the parties who had agreed to move it had done so or not. It was brought to Ewing on the following Sunday, and delivered to the defendant. On Monday and Tuesday defendant and one Miles Walker and the latter's son, Russell Walker, both engineers, tested it, running it about the streets. It seems that the engine stood the test well, but that defendant insisted that plaintiff "guarantee" the boiler and crown sheet thereof for one year. Plaintiff thereupon executed a writing to this effect, and defendant gave plaintiff his check for $150. Defendant and Russell Walker then (Tuesday afternoon) started to run the engine out to defendant's home some four miles from Ewing. It seems that they had proceeded but a short distance when the engine gave trouble, and they returned with it and put in on "the right of way" behind Lesch's store, and defendant told Lesch to notify plaintiff that he would not take it. And defendant thereupon stopped payment upon the check which he had given to plaintiff.

Plaintiff was in Ewing when defendant accepted the engine and left with it; and the only evidence in the record touching his departure therefrom is the testimony of Lesch, who says:

"Next morning (Wednesday) I had to go out in the country, and Mr. Marth (plaintiff) went to Illinois."

It further appears from Lesch's testimony that he did not notify plaintiff of the return of the engine until some time in the following January, when he wrote plaintiff in regard to another matter. And plaintiff testified that he did not learn thereof until some time in January, 1911, when he returned to Ewing; that he then found that the crown sheet was cracked, and had it repaired, and on January 26, 1911, wrote defendant a letter, which was introduced in evidence, demanding a compliance with the terms of the sale. It appears that the local bank wrote plaintiff at the home office of the latter's company in regard to the dishonoring of defendant's check, and plaintiff testified that he did not know of it at the time, and did not learn that payment had been stopped on the check for "a good while afterwards."

There is much in the record touching the condition of the engine, and particularly the crown sheet, which need not be here detailed. Nearly all of it tends to show that the engine was in reasonably good order, and the crown sheet not cracked, when delivered to defendant. Miles Walker, defendant's engineer, testified that it was "in good running order" and "in good shape" when delivered. Russell Walker, the engineer who, with defendant, started with the engine from Ewing, testified that he let cold water into the hot boiler after stopping to clean out the injector, which in his opinion caused the crown sheet to crack; and that no leak had theretofore been observed therein.

I. One of the defenses below was that the memorandum of the sale signed by defendant had been altered after the execution thereof, by erasing the words "Knox City," and inserting "Steffenville" in lieu thereof. Defendant denied under oath that he executed the instrument set out in the statement filed; and he and two other witnesses testified that, as executed, the writing contained "Knox City" instead of "Steffenville." Plaintiff testified that the instrument had not been in any wise altered; but that both Knox City and Steffenville were mentioned when the writing was prepared.

The court, in instructing the jury, pursued the theory that an alteration of the instrument, in...