Massey-Harris Harvester Co. v. Quick

• Decision Date: 12 November 1935
• Citation: 87 S.W.2d 446,229 Mo.App. 1136
• Parties: MASSEY-HARRIS HARVESTER CO., APPELLANT, v. CHICK QUICK, RESPONDENT
• Court: Kansas Court of Appeals

87 S.W.2d 446

229 Mo.App. 1136

MASSEY-HARRIS HARVESTER CO., APPELLANT, v. CHICK QUICK, RESPONDENT

Court of Appeals of Missouri, Kansas City

November 12, 1935

Appeal from Circuit Court of Holt County.--Hon. J. E. Roberts Special Judge.

AFFIRMED.

Judgment affirmed.

Petree & Wright and Samuel Feller for appellant.

H. B Pyle, Lester Vonderschmidt, Gene Thompson and K. D. Cross for respondent.

OPINION

SHAIN, P. J.

This is a suit in replevin wherein the Massey-Harris Harvester Company was plaintiff and Chick Quick was defendant.

The case involves a contract of purchase on a No. 6 Massey-Harris Reaper-Thresher, commonly known as a combine, and notes given in the transaction one of which was secured by chattel mortgage on growing wheat. The case was once before in this court for review, 42 S.W.2d 47.

The original replevin suit was for the possession of the combine and for possession of wheat covered by the chattel mortgage. The defendant's answer denied possession of the combine and admitted plaintiff's right of possession of same. The answer denied plaintiff's right to the possession of the wheat and asked damages for detention of same. The defendant further made claim for damages by way of counterclaim. The judgment was for the plaintiff in the first trial for possession of the combine and wheat and against the defendant on counterclaim. The same was reversed and on the retrial in the circuit court the issue was confined alone to the issue of right of possession of the wheat and damages for detention. Judgment on the retrial was for defendant as to the possession of the wheat and damages in the sum of $ 513.28 was awarded defendant.

From this judgment the plaintiff duly appealed.

For uniformity, we will hereinafter refer to the appellant as plaintiff and the respondent as defendant.

It is shown that the plaintiff was the holder of notes executed by the defendant and plaintiff's claim of right of possession of the wheat is based upon a chattel mortgage given to secure this indebtedness. The plaintiff asked damages in the sum of $ 100 for taking and detention.

It appears that possession of the wheat was taken by plaintiff on the replevin writ and defendant answered denying plaintiff's right and asserting his right to possession of the property here in issue and that he was entitled to said possession at the time of the institution of the suit and asks damages of $ 1500 for the taking and detention thereof. By way of reply, the plaintiff makes general denial of defendant's answer. The plaintiff further replying plead in part, as follows:

"The plaintiff admits that on the 7th day of June, 1928, defendant entered into a contract with plaintiff to purchase one Massey-Harris No. 6 Reaper-Thresher complete with auxiliary engine and tractor hitch for which defendant agreed to pay plaintiff fifteen hundred seventy dollars ($ 1570) plus freight from Kansas City to Forest City, Missouri, amounting to thirty-eight dollars and seventy-five cents ($ 38.75) and defendant was to execute his notes for the amount of the purchase price as follows: One note for seven hundred dollars ($ 700) due August 1, 1928, and one for eight hundred and seventy dollars ($ 870) due August 1, 1929, both notes to bear interest at the rate of eight per cent (8%) per annum from July 15, 1928. Plaintiff alleges said notes were executed in accordance with the terms and conditions of said contract and subject to the terms and conditions thereof; that said notes were not taken by the plaintiff in payment of said machinery but only as evidence of the defendant's indebtedness to the plaintiff.

"Plaintiff admits that said contract contains the provisions set out and quoted on pages two (2) and four (4) of defendant's answer and further admits that said machinery was shipped by plaintiff to defendant at Forest City, Missouri, and that same was unloaded and conveyed to defendant's farm."

The plaintiff in reply further plead and set forth conditions in said contract and alleged breaches and noncompliance thereof by the defendant.

As to the above quotation wherein the plaintiff "admits" and, especially as to the second paragraph, reference evidently is to the answer in the trial had on the first occasion. There is nothing in the record before us to show what was contained in the former answer and there is nothing herein from which we can determine the matters referred to as "admitted" as shown upon pages two and four of same. We will, of course, under such showing be unable to give consideration of the matters so referred to.

As to the conditions of the contract relied upon by the plaintiff, we conclude that it is not necessary to burden the opinion by setting same out in full. This is so for the reason that the plaintiff in its brief has summarized the same as applied to the issues and we adopt said summary which is as follows: "Those conditions which may be involved in the determination of this suit provided that in the event the defendant as purchaser should believe and find that the machine did not perform in accordance with the terms and conditions of the contract, including the warranties thereof, that he would immediately notify the plaintiff by letter or telegram, stating the particulars in which the machine failed to comply with the contract. It also provided that the use of the machine after six (6) days after first starting same should be deemed an acceptance thereof and that the machine was fully complying with all the terms and conditions thereof. The contract also provided that no employe of the company could alter or change the contract in any respect, except a branch manager of a branch house or the officers of the company."

The only question involved in this case, we conclude, is tersely and correctly stated in appellant's brief as follows:

"The only question, appellant contends, that should have been determined at the second trial was as to whether or not the plaintiff tendered or delivered to the defendant a 'Massey-Harris, No. 6 reaper-thresher 10 ft., complete with auxiliary engine and tractor hitch and fore carriage,' or that defendant accepted the machine that was delivered to him and if the plaintiff showed these facts, then it was entitled to a judgment for the possession of the wheat involved in this action, because there had been a default in the payment of the $ 700 note, which was secured by the chattel mortgage on the wheat."

With the issue in this case so clearly stated above, we set forth the plaintiff's assignments of error as follows:

"1. The court erred in overruling plaintiff's motions for a new trial and in arrest of judgment.

"2. The court erred in overruling plaintiff's motion for judgment in non obstante veredicto.

"3. The court erred in refusing to give a peremptory instruction directing the jury to return a verdict in favor of the plaintiff and against the defendant as requested by plaintiff.

"4. The court erred in failing to declare as a matter of law, under the undisputed and admitted facts, that plaintiff was entitled to the possession of the wheat in question.

"5. The court erred in giving instruction No. A on behalf of defendant, over the objections of plaintiff.

"6. The court erred in refusing to give instructions No. 1 and No. 2 requested by the plaintiff.

"7. The court erred in admitting, over plaintiff's objections, improper, incompetent, irrelevant and immaterial evidence offered by the defendant to the prejudice of the rights of the plaintiff.

"8. The instructions given by the court to the jury were contradictory, inconsistent and confusing.

"9. The verdict and judgment are against the law and the evidence and contrary thereto and for the wrong party.

"10. The uncontradicted and admitted facts adduced at the trial show that the plaintiff delivered to the defendant the reaper-thresher described in the contract of sale and that the defendant accepted the same. It was therefore the duty of the court to instruct the jury to render a verdict in favor of the plaintiff, and the questions whether or not the machine was shipped in a party knocked-down condition, or operated in accordance with the warranties contained in said contract were, under the undisputed facts, immaterial and not issues in the case.

"11. That on the whole record of the case the plaintiff was entitled to a judgment and the court erred in rendering judgment in favor of the defendant."

As this cause was tried by a jury resulting in a verdict for the defendant, we, of course, must give consideration alone to the evidence most favorable to the defendant.

The conclusion of the court, touching assignment of error No. 3, will of necessity materially affect conclusions respecting assignments No. 1 and No. 2 and will also determine as to many questions raised by the other assignments.

The contract involved is a conditional sale contract and the clauses therein are so favorable to the vendor that if it be determined that the machine in question, which undoubtedly was tendered to the plaintiff, was complete and reasonably adapted and equipped and capable of doing the work for which it was contracted for to do, or if it be determined that the defendant actually accepted the machine in question, then it follows that defendant cannot escape liability.

The above is true for the reason that if either of the above determining factors be established, then and in such event there is no evidence upon which to base a conclusion that the defendant met the requirements of the contract if a proper machine was tendered to or delivered to him and accepted by him.

With the above in mind, it becomes our duty to search the record and determine as to whether there is any substantial testimony from which it can be reasonably...