Minneapolis-Moline Power Implement Co. v. Wright

• Citation: 122 S.W.2d 397,233 Mo.App. 409
• Parties: MINNEAPOLIS-MOLINE POWER IMPLEMENT CO., APPELLANT, v. JOHN R. WRIGHT, RESPONDENT
• Decision Date: 07 November 1938
• Court: Court of Appeals of Kansas

122 S.W.2d 397

233 Mo.App. 409

MINNEAPOLIS-MOLINE POWER IMPLEMENT CO., APPELLANT, v. JOHN R. WRIGHT, RESPONDENT

Court of Appeals of Missouri, Kansas City

November 7, 1938

Appeal from Saline Circuit Court.--Hon. Charles Lyons, Judge.

Judgment affirmed.

W. T Bellamy and Watson, Ess, Groner, Barnett & Whittaker for appellant.

(1) When respondent refused to pay for the combine because of alleged breach of warranty, appellant, upon tender to respondent of the cash paid and notes given by him upon the purchase price, became entitled to its possession. Respondent could not both keep the combine and refuse to pay for it. Kirk v. Seeley, 63 Mo.App. 262, 265; Bank v Barts, 130 Mo.App. 635, 637; McCormick Machine Co v. Brady, 67 Mo.App. 293, 295; J. C. Boss Engineering Co. v. Gunderson (Minn.), 209 N.W. 876. (2) The contract is valid and it alone fixed and prescribed the rights and remedies of the parties, and it furnishes the sole basis of respondent's rights, both as to the breach of warranty and the measure of recovery therefor, and the court should have given it that effect and erred in overruling appellant's demurrer to the evidence offered under respondent's counterclaim. Bank of Polk v. Wood, 189 Mo.App. 62, 69; Nichols-Shepard Co. v. Rhoadaman, 112 Mo.App. 299; Boyer v. Neel, 50 Mo.App. 26; Wood Machine Co. v. Bobbst, 56 Mo.App. 427; Kingsland & Douglas Mfg. Co. v. Board Bros., 60 Mo.App. 662, 669, 670; Acme Harvesting Machine Co. v. Gasperson, 168 Mo.App. 558, 571. (3) There was no waiver of the condition precedent, imposed by the contract upon respondent, of returning the machine to the company at dealer's station, and the court erred in overruling appellant's demurrer to the evidence offered under respondent's counterclaim which sought recovery of consequential damages. Steele v. Kansas City Southern Ry. Co., 265 Mo. 97; Crews v. Lombard (Mo.), 216 S.W. 512; St. Clair v. Hellweg, 173 Mo.App. 660. (4) Even if we assume there was a waiver by appellant of the condition imposed upon respondent by the contract that he return the machine to the company at the dealer's station if he claimed breach of warranty, still respondent could not recover consequential damages, because consequential damages were not within the contemplation of the contract but were expressly excluded by its provisions, and the court erred in overruling appellant's demurrer to the evidence offered under respondent's counterclaim, which sought recovery of consequential damages. Hadley v. Baxendale, 9 Ex. 353; 1 Sutherland on Damages (4 Ed.), sec. 45, page 171, and Vol. II (4 Ed.), sec. 671, page 2413; Helvetia Copper Co. v. Hart-Parr Co. (Minn.), 171 N.W. 272, 274; Bechtold v. Murray-Ohio Mfg. Co. (Pa.), 184 A. 49, 50, 51; Shaw v. Water Supply & Storage Co. (Colo.), 128 P. 480, 483; Canon City Elec. L. & P. Co. v. Medart Patent Pulley Co., 11 Colo.App. 300, 52 P. 1030; Sycamore Marsh Harvester Co. v. Strum (Nebr.), 13 N.W. 202; Boyer v. Neel, 50 Mo.App. 26, 29, 35, 36; Acme Harvester Mac. Co. v. Gasperson, 168 Mo.App. 558, 571; Bank of Polk v. Wood, 189 Mo.App. 62, 69, 70; Amer. Natl. Bank v. Allen, 195 Mo.App. 98, 100. (5) The verdict is inconsistent and contradictory. Johnson v. Labarge, 46 Mo.App. 433, 435; Ruth v. McPherson, 150 Mo.App. 694, 701; Ferd Bauer Engineering Co. v. Arctic Ice & Storage Co., 186 Mo.App. 664, 670, 671.

Louis Buck, Perry G. Storts and Johnson & Bacon for respondent.

(1) Appellant's statement "When respondent refused to pay for the combine because of alleged breach of warranty appellant upon tender to respondent of the cash paid and notes given by him upon the purchase price, became entitled to its possession. Respondent could not both keep the combine and refuse to pay for it" in no way designates any error committed by the court and presents no assignment to this Court for review. Waters et al. v. Gallemore et al., 4 S.W.2d 870, 872; LeClaire v. LeClaire et al., 77 S.W.2d 862, 864; Hart v. Missouri State Life Insurance Co., 79 S.W.2d 793, 794. (2) Demurrer to the Evidence. The court properly overruled the demurrer to the evidence on respondent's counterclaim. (a) At Points II, III, and IV of appellant's assignments of error appellant does not set out the matters complained of nor point to the record where they may be found as required by rules 16 and 17 of this Court and such assignments should be disregarded. LeClaire v. LeClaire et al., 77 S.W.2d 862, l. c. 864; Seewald v. Gentry, 286 S.W. 445, l. c. 454. (b) Appellant's Point (2). The contract of purchase containing warranties did not furnish the sole remedy and measure of recovery of respondent purchaser, but for breach of warranty he could recover damages on his counterclaim and the court properly overruled the appellant's demurrer to the evidence on such counterclaim. 1. The contract of purchase was on a printed form, prepared by seller. It was ambiguous and should be construed favorably to respondent. Mayfield v. Richardson Mach. Co., 208 Mo.App. 206, l. c. 216; Interior Linseed Co. v. Becker-Moore Paint Co., 273 Mo. 433. 2. Respondent purchaser after the machine failed to fulfill the warranties, repeatedly, offered to return the same to seller, the seller refused to accept the same and respondent was entitled to recover all consequential damages on his counterclaim regardless of any provision in the contract purporting to limit his remedy to the return of the purchase money paid and notes executed. Mayfield v. Richardson Mach. Co., 208 Mo.App. 214. 3. When respondent purchaser offered to return the machine to appellant, after the breach of warranty and appellant's failure to make it fulfill the warranty, and appellant refused to accept the same, the respondent was not thereafter required to perform the futile act of returning the machine, f. o. b. dealer's station. Mayfield v. Richardson Mach. Co., 208 Mo.App. 214, l. c. 215; Tall v. Chapman, 66 Mo.App. l. c. 584; Smith v. Means, 170 Mo.App. 172; Osborne v. Mulliken, 88 Mo. App., l. c. 353-354; Palmer v. Reeves Co., 139 Mo. App., l. c. 480; Enterprise Soap Works v. Sayers, 55 Mo.App. l. c. 25. 4. Respondent's counterclaim declares on different breaches of the contract, including the breach in relation to the warranty as well as the breach of the agreement that appellant upon failure of the warranty and notice thereof would return to defendant the purchase price paid and notes executed, and there being substantial evidence of all of said breaches the demurrer was properly overruled. Mayfield v. Richardson Mach. Co., 208 Mo.App. 219. 5. Consequential Damages. The warranty warranted the machine to do the work it was intended to do and that it was well made and of good material. The respondent, on the breach of warranty was entitled to recover damages on his counterclaim for loss of his own crops and for loss sustained because he could not combine the custom crops for which he had contracted. Mayfield v. Richardson Mach. Co., 208 Mo.App. 214; Minn. Threshing Mach. Co. v. Bradford, 206 Mo.App. 609; Beyer v. Coca-Cola Bottling Co., 75 S.W.2d 648; Roberts v. Hardy, 89 Mo.App. 89; Machine Co. v. Gasperson, 168 Mo.App. 570; Plattner v. Plattner, 116 Mo.App. 404. (c) Appellant's Point (3). 1. The contract was ambiguous, it was prepared by appellant on its printed form and under a fair and liberal construction the contract did not impose upon respondent as a condition precedent, the return of the machine f. o. b. cars dealers station, before appellant was required to make its election or choice to and offer to return the purchase price paid and notes executed by respondent. Osborne & Co. v. Henry, 70 Mo.App. 25; Anglo-American Mill Co. v. Twin City M. & Mfg. Co., 35 S.W.2d 983 and 986; Southwestern Freight & Cotton Express Co. v. Plant et al., 45 Mo. 517; Ficklin v. Tinder, 161 Mo.App. 283; Stresovich & Co. v. Kesting, 63 Mo.App. 57. 2. In its petition in this case appellant bases its cause of action in replevin solely on the ground that the machine was defective and that it had the right to rescind the contract, return the purchase price and receive back the machine. The petition states that respondent claimed the machine had failed to fulfill the warranty and that appellant immediately elected "under the provisions of the warranty" to accept the return of the machine and tendered and offered to return the purchase price paid and notes executed. Appellant's construction of the warranty that it had to make this election when the machine proved defective before any offer by respondent to return the machine as it now contends forces the construction of the contract that appellant did have to elect to rescind the contract before the respondent was required to offer to return the machine. Scotten v. Metropolitan Life Ins. Co., 81 S.W.2d 313; Thomas v. Utilities Bldg. Corporation, 74 S.W.2d 578; Marden v. Radford, 84 S.W.2d 947. 3. After respondent five times had offered to return the machine and the appellant had refused to accept same, the appellant requested respondent to keep same and it continued to try to repair it. The appellant thus waived the right to demand the return of the machine. Osborne & Co. v. Henry, 70 Mo.App. 28; Palmer v. Reeves & Co., 139 Mo.App. 480. 4. Appellant knew the machine had failed to fulfill the warranty and after the harvest was over and respondent had repeatedly offered to return the machine, the appellant on October 21, 1935, demanded payment of the purchase price notes and it thus waived any rights it had, if any, to return the purchase price paid and notes executed in satisfaction of all claims of respondent. Osborne v. Millikin, 88 Mo.App. 350; Palmer v. Reeves & Co., 139 Mo.App. 480. 5. Even if respondent as a condition precedent had to return or offer to return the machine f. o. b. dealer's Station before appellant...