Martin v. American Magnestone Corporation

• Decision Date: 29 January 1923
• Docket Number: No. 14544.,14544.
• Parties: MARTIN v. AMERICAN MAGNESTONE CORPORATION.
• Court: Missouri Court of Appeals

247 S.W. 465

MARTIN v. AMERICAN MAGNESTONE CORPORATION.

No. 14544.

Kansas City Court of Appeals. Missouri.

January 29, 1923.

Appeal from Circuit Court, Pettis County; E. B. Shain, Judge.

"Not to be officially published."

Action by W. B. Martin against the American Magnestone Corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Montgomery & Rucker, of Sedalia, for appellant.

H. T. Williams, of Sedalia, for respondent.

ARNOLD, J.

This is an action in damages for breach of warranty. Plaintiff is a resident of Sedalia, Pettis county, Mo. Defendant is a foreign corporation, with headquarters in Springfield, Ill., having an office and branch factory in Kansas City, Mo., and is engaged in the manufacture and sale of a composition of materials called American Magnestone stucco, used to make a solid, hard, waterproof and weatherproof coating for houses.

The petition alleges that on or about June 10, 1921, defendant through its salesman and agent offered to sell plaintiff a sufficient amount of said product to stucco his house in Sedalia; that in order to induce plaintiff to purchase said materials, samples of the perfected product were exhibited to him at the time by said agent, in order to show how plaintiff's house would be and appear when completed by such process. In addition to showing said samples and as a further inducement to plaintiff to buy said materials defendant's agent represented, warranted, and guaranteed that said materials, when placed upon plaintiff's house as a covering, would form a sold waterproof covering, perfectly hard and impervious to water, unaffected by weather conditions, and which would last indennitely.

The petition further charges that plaintiff, believing said representations, and relying upon the warranties and guaranties so given, was induced to purchase, and did purchase, said product; that said agent further informed plaintiff that the order for said materials must be given through some local dealer, and designated the G. A. Gold Lumber Company of Sedalia as such dealer; that plaintiff did purchase said materials through said lumber company in sufficient quantity to stucco his house; that said materials so purchased were delivered to plaintiff on or about July 12, 1921, and thereafter were applied to the house in accordance with the plans and specifications furnished by defendant; that said materials were not as represented and warranted; that when applied to plaintiff's house the covering would not resist moisture; that it became damp and soft, crumbled and fell off in wet weather, and would not resist freezing weather; that said materials proved wholly worthless for the purposes for which they were sold; that plaintiff will have to remove the said stucco from his house; that by reason thereof plaintiff has been damaged in the sum of $1,000, for which judgment is asked.

The answer is a general denial.

Trial, on May 26, 1022, was to a jury. At the close of plaintiff's case the court refused to sustain a demurrer offered by defendant, whereupon defendant's counsel announced:

"We rest. We stand on our demurrer."

The defendant then asked the court to give the following peremptory instruction:

"The court instructs the jury that your verdict must be for the defendant, and may be in the following form: `We, the jury, find the issues for the defendant.'"

The court refused to give said instruction, and the jury brought in a verdict for plaintiff in the sum of $000. A motion for new trial being overruled, defendant brought the case here by appeal.

The evidence shows that at the time of the visit to plaintiff by defendant's first agent, Plaintiff stated he would purchase the product, but that he was not then ready to apply it to his house. Later another and different agent of defendant came to Sedalia and closed the deal, the order being placed through the Gold Lumber Company, which, without the knowledge of plaintiff, was to receive a discount of 12½ per cent. on the purchase price of said material. The order was written by the agent of defendant, and signed by the Gold Lumber Company.

The first point urged by defendant as a basis for reversal is that a warranty is a statement or representation made by the seller of goods contemporaneously with, and as a part of, the contract of sale. There should be no quarrel with this plain statement of the law, and citations offered in support thereof are unnecessary. In this connection, defendant states:

"We believe the determination of this case will turn on the question of whether the contract for the material in question was made by plaintiff with the defendant or with the...