Massey-Harris Co. v. Quick

• Decision Date: 06 April 1931
• Parties: MASSEY-HARRIS COMPANY, RESPONDENT, v. CHICK QUICK, APPELLANT
• Court: Kansas Court of Appeals

42 S.W.2d 47

227 Mo.App. 736

MASSEY-HARRIS COMPANY, RESPONDENT, v. CHICK QUICK, APPELLANT

Court of Appeals of Missouri, Kansas City

April 6, 1931

Appeal from Circuit Court of Holt County.--Hon. Guy B. Park, Judge.

REVERSED AND REMANDED AS TO JUDGMENT FOR PLAINTIFF ON HIS CAUSE OF ACTION; AFFIRMED AS AGAINST DEFENDANT ON HIS COUNTERCLAIM.

Frank Petree and Samuel Feller for respondent.

H. T Alkire, A. M. Tebbels and Eastin & McNeely for appellant.

BLAND J. Arnold, J., concurs; Trimble, P. J., absent.

OPINION

BLAND, J.

--This is a suit in replevin. At the close of all of the testimony the court instructed the jury to find for the plaintiff on plaintiff's cause of action and against defendant on the latter's counterclaim. A verdict was returned accordingly and judgment entered thereon. Defendant has appealed.

The facts show that on June 7, 1928, defendant signed a written order furnished by the plaintiff and addressed to it for a wheat combine. The order recites: "You will please ship to yourself in care of Chick Quick at Curzon Switch near Forest City on or about the at once, day of 1928, the following:--1 Massey-Harris No. 6 Reaper-Threshers, 10 ft. complete with Auxiliary Engine and Tractor-Hitch @ $ 1570. Forecarriage." The order further recites that defendant agreed to receive the machinery ordered immediately upon its arrival at the railroad station, "subject to the warranty and agreements and all conditions" printed in the order and to pay the freight amounting to $ 38.75.

The order further recites that the vendor warranted the reaperthresher in question to be well made and of good material and, if properly operated and cared for, to be capable of doing good work, conditions of field and crop considered; that the warranties made were upon conditions that the machinery should be placed in use and tried out as soon after delivery thereof as was reasonably possible; that notice of any defect or breech should be given to the vendor by registered mail, particularly describing the same and specifying the time of its discovery; that such notice should be given within four days of the discovery of the defect or breach and that the defect or breach, to be covered by the warranty, should occur within six days after the first use of the machinery. The order then recites that if a remedy could not be suggested by letter, reasonable time should be allowed the vendor to send one of its representatives to remedy the defect, the purchaser to render all friendly assistance necessary and if such representative failed to make the machinery fulfill the warranty, the purchaser should give immediate notice by registered mail or telegram to the vendor, stating specifically all the complaints, allowing it ample time to send an expert to the machinery; that "the use of any machinery ordered, after six days from the first starting thereof, or the failure to give notice within six days of the first starting thereof of any defect therein or the failure to return the machinery stipulated herein shall be deemed a fulfillment of said warranty and evidence of a full satisfaction by the" purchaser "and a waiver of all claims whatsoever against the vendor."

The order further recites:

"It is expressly agreed and understood that tender to the purchaser by the vendor, or the vendor's authorized agents or employees, of the machinery hereinabove described, shall constitute a complete and true delivery of said machinery to said purchaser." . . .

"It is expressly agreed and understood that the title, ownership, and right of possession all the machinery hereinabove described shall remain in the vendor until the full purchase price thereof is paid in money. If notes are taken as provided in this contract, the same shall not be considered as payment, but simply as evidence of the indebtedness."

To cover the purchase price of the machine defendant executed two notes in favor of plaintiff, one in the sum of $ 700, due August 1, 1928, and one in the sum of $ 870, due August 1, 1929. The $ 700 note was secured by a chattel mortgage on defendant's one-half interest in 145 acres of growing wheat.

The petition alleges that the notes referred to were in default and plaintiff thereby became entitled to the possession of the wheat and that plaintiff was the owner of the combine, all of which were wrongfully detained by defendant, and prayed judgment for the recovery of their possession and $ 100 damages for their taking and detention.

The answer denies that defendant had or ever had in his possession the combine and states that plaintiff is entitled to the possession of the combine but not the wheat; that the value of the wheat is $ 3,000; that defendant had been damaged by the taking of the latter and its detention in the sum of $ 1500. The answer also sets up a counterclaim based upon the failure of plaintiff to furnish a combine of the character described in the contract or order; that as a result thereof and the waiting upon plaintiff to furnish such a combine defendant "was obliged to permit his whole wheat crop to become overripe, and in a condition whereby it was wasted, and shattered out of the hull, so that when after the failure of plaintiff to deliver said machine, . . . defendant attempted to harvest it by other methods, a large proportion of his crop was wasted and lost to him; that he lost not less than fifteen bushels per acre upon his entire crop because of said plaintiff's failure to furnish defendant with the reaper-thresher that would harvest his crop, as plaintiff has agreed and warranted that it would do, which said wheat" was of the market value of $ 3500, for which defendant prayed judgment.

The reply consists of a general denial and an admission of the contract set up in the answer. The reply further alleges that the notes were executed in accordance with the terms of the contract; that they were not taken in payment of the machinery but only as evidence of defendant's indebtedness to plaintiff. The reply, also, sets forth verbatim several pages of the order or contract and alleges that defendant failed to comply with the provisions of the contract with respect to notice of the failure of the machine to comply with the warranty and that defendant "wholly failed to carry out any of the conditions of said contract hereinafter set out, and wholly failed to pay the purchase price or any part thereof." The reply further alleges that defendant continued to use the machine after the expiration of six days after it was first started; that he failed to return the machine to the railroad station at Forest City; that by said acts defendant accepted the machine as in full compliance with the contract and in fulfillment of the covenants of the warranties contained therein; that "defendant in and by said contract waived and released plaintiff from all claims for damages set out in this (his) counterclaim; that by the terms of said contract the defendant is estopped from claiming any of the damages set out in his counterclaim."

The testimony on the part of the defendant tends to show that during the latter part of June, 1928, plaintiff shipped to him a Massey-Harris No. 6 Reaper-Thresher to Curzon Switch, a siding of the Burlington Railroad in Holt County; that defendant went to the station, found that the machine had been shipped largely in a knocked down condition, consisting of boxes, crates and bundles, and that it was required to be assembled and put together before it could be used; that he put the parts upon his wagon, hauled them to his home and stored them in his barn; that sometime later a Mr. Dunbar, a representative of plaintiff, came to defendant's farm to assemble the machine. This occupied several days and no attempt was made to cut the wheat until the 13th day of July. Dunbar stated to defendant that the wheat was not ripe enough and did not decide that it was in condition to cut until the last named day. At that time the harvest in the neighborhood was entirely over and the neighbors were threshing out of the shock.

The machine in question was designed to harvest and thresh wheat in one operation and was drawn over the field upon trucks moved by a tractor. The trucks were solely for the support of the machine. The traction from the truck wheels was not communicated to the machinery, but it was operated by an auxiliary gasoline engine which was a part of the machine and operated independently of the truck wheels and the tractor.

On the 13th day of July Dunbar and one Davis, representatives of plaintiff, started to cut defendant's wheat with the machine. Dunbar and Davis, assisted by defendant and a tractor, owned by defendant and operated by an employee of the latter, drove the machine into the wheat field in the afternoon. During the whole of that afternoon they succeeded in making but one round of a fifty-five acre field. The machine would choke up and the carrier would not elevate the grain to the threshing apparatus. The carrier would stop or slip and the grain would pile up and go into the threshing apparatus all "at once" and cut off the cotter keys and stop the machine. The recleaner would not work and it was...