Morton Electric Co. v. Schramm

• Decision Date: 29 September 1925
• Docket Number: No. 18979.,18979.
• Citation: 277 S.W. 368
• Parties: MORTON ELECTRIC CO. v. SCHRAMM.
• Court: Missouri Court of Appeals

277 S.W. 368

MORTON ELECTRIC CO. v. SCHRAMM.

No. 18979.

St. Louis Court of Appeals. Missouri.

September 29, 1925.

Rehearing Denied October 29, 1925.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action on account by the Morton Electric Company against Elmer C. Schramm. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

John V. Lee, of St. Louis, for appellant.

John T. Manning, of St. Louis, for respondent.

BENNICK, C.

This is a suit on account for the purchase price of an electric washing machine sold by plaintiff to defendant. The case originated in a justice's court, but was tried on appeal in the circuit court, resulting in a verdict for defendant. Having unsuccessfully moved for a new trial, plaintiff has appealed.

Plaintiff's statement alleged that defendant was indebted to it in the sum of $171 for one all-metal electric washer, sold and delivered to defendant at his special instance and request, for which sum plaintiff prayed judgment together with interest.

Defendant chose to plead specifically in the justice's court. His answer as amended in the circuit court, after admitting the purchase of the washer, alleged that immediately after the delivery of said machine, defendant set the same in motion, and in so doing, and while he was acting under the instructions furnished by the plaintiff,,he found that the machine was not working successfully, and that it was worthless and of no value for any purpose; that he notified plaintiff of that fact, and that the machine was then in that condition, and had been since the date of the purchase of the same.

The reply was conventional.

The evidence disclosed that defendant came into plaintiff's store and stated that he wished to buy an all-metal washer. He refused a demonstration for the reason that a friend of his who owned such a machine had recommended it to him very highly. Defendant paid $10 on the purchase price and arranged to pay the balance of $171 in monthly installments of $14.25 each. After specifying where the machine was to be delivered, defendant left the store. After he was on the sidewalk, the salesman from whom he had made the purchase called him back into the store and informed him that he would be required to sign a note for the amount still due as well as a chattel mortgage. This request was complied with. Plaintiff carried defendant's indebtedness on its books as an open account according to its usual custom, and did not file the mortgage as prescribed by the statute. There was no agreement that the note was taken in settlement of the account, it being considered by the parties only as evidence of the terms of the transaction.

The second day after the sale, the washer was delivered at defendant's home. Defendant's evidence was that upon attempting to use the washer both he and his wife received severe electric shocks so that it became necessary for them to use a broom handle in starting or stopping the machine. In addition, the pumping arrangement on the machine would "stick" so that it was impossible to clean the clothes. Defendant advised plaintiff by telephone of this situation, and as a result a woman demonstrator and a repair man were sent to defendant's home to repair the machine and demonstrate its use. After the repair man finished his work, no more electric shocks were felt, but the pumping arrangement still failed to function. The demonstrator spent three or four hours in an attempt to wash some clothes, but had no greater success than defendant's wife had experienced. Defendant called plaintiff on the telephone a couple of times more, and on a later occasion his wife personally visited the store and asked the salesman to refund the money. She was informed that she would have to keep the machine. Defendant made four or five attempts to use the machine without success, and finally stored it in his basement, where it was at the time of the trial. The evidence was that the washer was equipped with an electric motor worth $35, and that the tub had some value apart from the value of the entire machine.

At the close of its case, plaintiff formally produced in court the note signed by defendant which had previously been identified and marked as "Plaintiff's Exhibit B."

Plaintiff assigns as error, among other things, the action of the court in refusing to give three instructions asked by it. The first of such instructions, designated B, peremptorily told the jury that under the law and the evidence plaintiff was entitled to recover the amount of the account sued on and that the verdict should be for plaintiff in the sum of $171 with interest at 6 per cent. We think, however, that the court properly refused this instruction.

Defendant in his answer admitted only the purchase of the washer, but denied each and every other allegation in plaintiff's petition, including, necessarily, the statement of the account. Furthermore, the amount of plaintiff's recovery depended, under the pleadings, upon proof as to the extent to which the machine was "worthless and of no value for any purpose." Under these circumstances, in an action, such as this, for money only the determination of the amount of the verdict was wholly within the province of the jury and not for the court to declare as a matter of law. Section 1423, R. S. 1919; Ward v. Bowman (Mo. App.) 228 S. W. 833; Good v. Kenney (Mo. App.) 226 S. W. 596; Milan State Bank v. McCallister (Mo. App.) 246 S. W. 609; Beckley v. Hickerson (Mo. App.) 257 S. W. 822.

Instruction C provided that if the jury should find and believe that defendant, with the intention of purchasing an all-metal washer, called at plaintiff's place of business and selected a machine which plaintiff afterwards delivered to defendant's home, then and in that event plaintiff was entitled to recover the account sued on in the amount of $171 with interest at 6 per cent., even though the jury should find and believe from the evidence that defendant was unable afterwards to use said washer or that it was unfit and unsuitable for his purposes. This instruction is subject to the same objection as was made to instruction B, in that it would have the court direct the jury as to the amount of the verdict. Furthermore, it is erroneous in that it authorizes a recovery in full for plaintiff even though defendant was unable to use the machine. Although defendant had concluded in his own mind that an all-metal washer was the type of machine he desired for his use and, in contracting for same, relied wholly on his own judgment and did not trust to the judgment of plaintiff's salesman that the particular washer he was buying was adapted to the accomplishment of his purpose, yet he did have the right to demand that his all-metal washer be mechanically perfect and come up to the standard of its class. If it failed in this respect, as his evidence tended to show, such fact was a valid defense to plaintiff's claim. Hunter v. Waterloo Gasoline Engine Co. (Mo. Sup.) 260 S. W. 970; Lindsborg Milling & Elevator Co. v. Danzero, 189 Mo. App. 154, 174 S. W. 459.

Instruction D was a statement of the rule that there is no implied warranty that an article is reasonably fit and suitable for the use and purpose of the purchaser, where the purchaser relies upon his own judgment and selects such article as he deems adapted to his uses, since, under the law, the basis of an implied warranty is the justifiable reliance of the buyer upon the seller's judgment. While this instruction was doubtless correct as an abstract proposition of law, it was drawn in such indefinite terms as not to be of any service to the jury in determining the facts in the case before them for decision, and its refusal, if error, was certainly harmless.

Plaintiff makes the additional point that it was entitled to recover in full the purchase price of the washer for the reason that no counterclaim was filed by defendant. This contention is without merit. The filing of a counterclaim is proper in a case wherein the defendant relies upon a breach of warranty, more often expressed although it may be only implied, and seeks to recover a greater or less amount than plaintiff's claim, depending upon the extent of his special extraneous damages. El Paso Milling Co. v. Davis, 194 Mo. App. 1, 183 S. W. 361; Monarch Metal Weather Strip Co. v. Hanick, 172 Mo. App. 680, 155 S. W. 858. In the instant case the only warranty in the sale of the washer was the implied warranty that it would measure up to the standard of its class. If defendant had chosen, he might have filed a counter claim; but, since his defense was the allegation that the...