Mayfield v. George O. Richardson Machinery Company
| Citation | 231 S.W. 288,208 Mo.App. 206 |
| Parties | WILLIAM A. MAYFIELD, Respondent, v. GEORGE O. RICHARDSON MACHINERY COMPANY, Appellant |
| Decision Date | 02 May 1921 |
| Court | Court of Appeals of Kansas |
Appeal from the Circuit Court of Buchanan County.--Hon. Thos. B Allen, Judge.
AFFIRMED.
Judgment affirmed.
Culver Phillip & Voorhees for respondent.
Ryan & Zwick and Ellis, Cook & Dietrich for appellant.
This is an action for damages for various breaches of a written contract governing the purchase and sale of a 30-horse power farm tractor. Plaintiff, at the time of the purchase and the execution of said contract and the alleged breaches thereof, resided in Oklahoma. Defendant is a Missouri corporation with its principal office at St. Joseph.
The contract called for the purchase of the tractor aforesaid, "Tractor to be of specification as shown in circular M-2-14," and the clause containing the warranty and other agreements and conditions now in question is as follows:
The circular M-2-14 was given to plaintiff at the time contract was made; and among the many specifications of the machine therein contained, was the following: "Number of plows pulled (slow speed) 8-12."
The plaintiff agreed to pay the freight from factory to the point where plaintiff was to receive it, and receive credit therefor on the price, and to execute notes aggregating $ 2500 for the purchase price, as follows: One note for $ 835 due September 1, 1914; one for $ 835 due September 1, 1915; and one for $ 830 due September 1, 1916. Said notes were made payable at the Capron State Bank, Capron, Oklahoma, and they provided for interest at 7 per cent per annum if paid on or before maturity, and 9 per cent per annum from date if not so paid. There was also a provision for the payment of attorney's fees in case the notes were placed in the hands of an attorney for collection. The notes were executed at Capron, Oklahoma, before the machine was shipped.
The contract and notes were executed and delivered, and the tractor was shipped by defendant to plaintiff at Capron, Oklahoma, on June 4, 1914. Plaintiff took the tractor out to his farm but the tractor was unsatisfactory and worthless, not being of good material or well made, nor would it do the work according to the rating and terms of the contract. Plaintiff promptly notified defendant by registered letter, and defendant made two attempts to remedy the tractor's defects, but without success. Thereupon, plaintiff returned the tractor to the place where he had received it, notified the defendant by registered letter, and demanded the return of his notes and the freight he had paid, which it is conceded was $ 140.
The defendant, however, refused to take the tractor back, declined to replace the defective machine with another and also refused plaintiff his notes and money.
At some time before the maturity of the notes, but whether before or after the rejection of the tractor does not appear, the defendant negotiated the notes to the Union National Bank of Massilon, Ohio. After their maturity, said Bank brought suit on them, the first thing plaintiff knowing of said bank having the notes was when he was sued. Believing and being advised that, under the law as it then stood in Oklahoma, the notes were non-negotiable and that he had a good defense to them on account of the equities between him and the payee, plaintiff resisted payment, under the authority of Randolph v. Hudson, 12 Okla. 516, 74 P. 946. The trial court upheld plaintiff's contention as to the non-negotiability of said notes; and upon appeal, the Supreme Court of Oklahoma, in Union National Bank v. Mayfield, 169 P. 626, affirmed the judgment. However, later, the Supreme Court of Oklahoma reversed the judgment and held that the notes were negotiable. [Union National Bank v. Mayfield, 174 P. 1034.] The Union National Bank being holder for value and without notice, was not affected by any equities between the maker and payee, so plaintiff herein was compelled to pay said notes, which he did on October 18, 1918, with interest at 9 per cent, making the total payment amount to $ 3700.
Thereafter, on November 30, 1918, plaintiff brought this suit for the breaches aforesaid. The case was tried on May 13, 1919.
The damages claimed and sought to be recovered by plaintiff was the amount he was compelled to pay on said notes plus the freight he had paid and also the damages he had sustained by way of expense in trying to operate said tractor and the loss of the rental value ($ 2 per acre) of one season's use of the land which the seller knew plaintiff was intending to plow with said tractor and sow in wheat. Over the objections of defendant, the trial court admitted evidence as to these items and, under instructions, authorized the jury to return a verdict in favor of plaintiff for the amount he was finally compelled to pay on said notes, as well as for the expenses he had incurred in trying to operate the tractor and for the rental value of the land for the season and use of which he lost by reason of the failure of the tractor to do the work it was warranted to do. The jury returned a verdict in plaintiff's favor for $ 3897.75, and defendant has appealed.
No complaint is made as to the sufficiency of the evidence to establish the jury's finding that the tractor was worthless and not in accordance with the contract and warranty. The record contains ample evidence that the fly wheel was smaller than the one designed for it, that the crank shaft was too short and had been pieced or lengthened out, that the "compression" was bad, that little power could be developed, that the fly wheel was "wobbly" on its shaft, and that the tractor would not do the work according to the terms of the contract. In other words, there was ample evidence that the machine was not "well made and, with proper management, capable of doing as good work as similar articles of other manufacturers," and the evidence amply tends to show that the tractor was worthless.
Defendant's first complaint is that certain evidence was improperly admitted. This evidence was that in plaintiff's locality when a tractor was used, disc plows were ordinarily used; that it took less power to pull disc plows than it did mouldboard plows; that two 8-inch disc plows wouldn't pull any harder than one 14-inch mouldboard plow; that the power required to pull a plow of 18 discs would about equal the power required to pull 9 plows each having a 14-inch mouldboard; than when plaintiff was considering buying the tractor he told defendant's agent that he was going to use an Emerson 18 disc plow and the agent said it would be all right; that in attempting to plow with it plaintiff used an Emerson 18 disc plow and could not develop enough power to pull it, except at such a shallow depth as was wholly insufficient; that the soil in which the tractor was attempted to be used was the same kind of land in that community which is cultivated and sown in wheat.
The defendant's objection to this line of evidence is that the warranty being express, there could be no implied warranty of fitness to do the purchaser's particular work, or to pull a particular plow, a particularly large plow of the purchaser's selection of disc type rather than of mouldboard, or to plow at a particular depth on purchaser's land. The objection to the evidence as to what plaintiff, prior to the purchase, told defendant's agent what work he proposed to do with the tractor and the size of the plow he was going to use with it and the agent's reply thereto, further rests upon the fact that the contract contains a provision that "no promises whether of agent, employee or attorney, concerning the articles herein purchased, the working of or warranty thereon . . . shall be binding on said corporation unless made and ratified in writing by an executive officer at its home office;" and also upon the rule that all verbal statements and representations are merged in the written contract and, if not appearing therein, are excluded thereby. Doubtless the objection would be good as to either one or both of these grounds had the evidence been introduced and relied upon to create or enlarge the warranty contained in the contract, but it was not offered for that purpose. So far as the use of the tractor for plowing is concerned, the warranty is that the machine will be capable of doing as good work as similar articles of other manufacturers, and concededly plowing is such work as is necessarily within the scope of a farm tractor. Indeed, the contract, by specific statement that the tractor shall "be of specification as shown in circular M-2-14" made the circular a part of it, and defendant's answer admits that the defendant sold plaintiff the tractor "of the specification as shown in defendant's circular M-2-14." Now, as hereinbefore stated, this circular said the number of ...
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