National Tube Works Co. v. Ring Refrigerating & Ice Machine Co.

• Decision Date: 22 December 1906
• Citation: 98 S.W. 620,201 Mo. 30
• Parties: NATIONAL TUBE WORKS COMPANY v. RING REFRIGERATING & ICE MACHINE COMPANY, Appellant
• Court: Missouri Supreme Court

98 S.W. 620

201 Mo. 30

NATIONAL TUBE WORKS COMPANY v. RING REFRIGERATING & ICE MACHINE COMPANY, Appellant

Supreme Court of Missouri, Division Two

December 22, 1906

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court. -- Hon. Horatio D. Wood Judge.

Affirmed.

S. T. G. Smith and Thomas S. Meng for appellant.

(1) A petition based on an unmatured demand does not state a cause of action. Heard v. Ritchey, 112 Mo. 519; Mason v. Barnard, 36 Mo. 391; Brown v. Shock, 27 Mo.App. 355; Duryee v. Turner, 20 Mo.App. 36; Boatmen's Sav. Bk. v. McMenany, 35 Mo.App. 198, 206. "The objection that the petition fails to state facts sufficient to constitute a cause of action, is never waived. Such defect in the petition is not cured by verdict or judgment." Brown v. Shock, supra; Mason v. Barnard, supra; Heard v. Ritchey, supra. (2) While suit may be instituted by attachment on an unmatured demand, if the attachment fails, the suit cannot be maintained. Grier v. Fox, 4 Mo.App. 522; Aultman v. Daggs, 50 Mo.App. 289; Knapp v. Joy, 9 Mo.App. 575; Duryee v. Turner, 20 Mo.App. 34; Peery v. Harper, 42 Mo. 132. (3) Under a plea of total failure of consideration, a partial failure may be shown, and the amount of the recovery reduced. Gamache v. Grimm, 23 Mo. 38; Brown v. Weldon, 99 Mo. 569. (4) Where goods are sold to be used for a particular purpose, there is an implied warranty of fitness for such use. Comingo v. Leedy, 114 Mo. 478; Armstrong v. Tobacco Co., 41 Mo.App. 259; Lee v. Saddlery Co., 38 Mo.App. 206; Creasey v. Gray, 88 Mo.App. 459; Bierman v. City Mills Co., 151 N.Y. 490; Kellogg Bridge Co. v. Hamilton, 110 U.S. 108; Dushane v. Benedict, 120 U.S. 636; Morse v. Union Stock Yds. Co., 21 Ore. 289. (5) Where goods are not of the kind or quality contracted for, or are unfit for the purpose for which they were sold, it is not necessary to return, or offer to return the goods, in order to defend against an action for the purchase price on the ground of total or partial failure of consideration. Murphy v. Gay, 37 Mo. 537; Compton v. Parsons, 76 Mo. 457; Brown v. Weldon, 99 Mo. 568. (6) A record or writing may be used to refresh the recollection of a witness, even though the writing was not made by him, and though it is not an original entry contemporaneously made. Greenleaf on Evidence (Lewis 1896 Ed.), secs. 436, 438.

Rowell & Ferriss, Joseph H. Zumbalen and Joseph S. Laurie for respondent.

(1) The fact that some of the obligations in suit were not due at the institution of this suit presents no obstacle to plaintiff's recovery thereon. Wag. Stat., p. 181, sec. 2; p. 189, sec. 42; p. 191, sec. 49. Section 2 of Wagner's Statutes, above quoted, has remained unchanged, and is now section 367, Revised Statutes 1899. Section 49, above quoted, has not been changed and is now section 414, Revised Statutes 1899. Section 42, above quoted, was amended in 1891, and is now section 407, Revised Statutes 1899. Assuming, for the present, that the case of Grier v. Fox, 4 Mo.App. 522, was correctly decided under the statutes then in force, we submit that the change made in the statute in 1891 must necessarily lead to a different result in this case. In view of the statutory provisions above referred to, which were not considered by the Court of Appeals, the case of Grier v. Fox was incorrectly decided. Knapp-Stout & Co. v. Joy, 9 Mo.App. 575, and Duryee v. Turner, 20 Mo.App. 34, arose under the same statute as Grier v. Fox, and simply followed that case without re-examination of the question involved, and hence need not be further noticed. Aultman Co. v. Daggs, 50 Mo.App. 288, arose before the amendment of 1891. The fallacy of that case lies in the conclusion. This court has repeatedly held that "jurisdiction of the subject-matter is the power to hear and determine cases of the general class to which the proceeding in question belongs." State ex rel. v. Elkins, 130 Mo. 90; Hope v. Blair, 105 Mo. 85; Leonard v. Sparks, 117 Mo. 103. A judgment in a suit on an obligation before its maturity is voidable only, and not subject to collateral attack. Robertson v. Huffman, 92 Ind. 247; Mikeska v. Blum, 63 Texas 44; Cornwell v. Hungate, 1 Ind. 156; Bush v. Hausen, 70 Ill. 480; Winningham v. Trueblood, 149 Mo. 572; State ex rel. v. Scarritt, 128 Mo. 399. (2) The defense set up in the answer has wholly failed. (3) Appellant contends that, under a plea of the total failure of consideration, it is permissible to show partial failure as a defense pro tanto. We do not agree to this. The statute (R. S. 1899, sec. 645), provides that in a suit upon a writing for the payment of money the defendant "may prove the want or failure of consideration, in whole or in part." This means, of course, when either of such defenses are pleaded, so that the meaning of the statute is the same as if it read may plead the want or failure of the consideration in whole or in part. Such defenses, we submit, are separate and distinct, and are required to be so pleaded. Under a plea of want of consideration defendant would not be entitled to show a failure of consideration, because said defenses rest on entirely different grounds; and upon the same principle, we submit that under a plea of a total failure of consideration because the property sold for a particular purpose proved wholly worthless, defendant should not be allowed to abandon such defense and show that the same was defective in certain particulars and therefore worth less than the contract price. Crenshaw v. Looker, 185 Mo. 375; Belden v. Church, 23 Ill.App. 473; Swain v. Cawood, 3 Ill. 505; Wadhams v. Swan, 109 Ill. 46.

OPINION

FOX, J.

The record before us in this cause discloses that this is an old case. The cause is now here upon appeal by the defendant from a judgment of the circuit court of the city of St. Louis. This action was instituted on October 25, 1890. The petition states in separate counts five causes of action. The first was upon a bill of exchange for $ 1,750, duly accepted by the defendant. The second was upon an account for goods sold and delivered for $ 58.59. The third was upon a bill of exchange for $ 448.98. The fourth was upon a promissory note for the sum of $ 1,969. The fifth was upon a bill of exchange for the sum of $ 700. At the time of the institution of this suit, in aid of it an attachment was simultaneously issued and under it certain property of the appellant was levied upon and held by the sheriff. The appellant filed a plea in abatement to the attachment, which was tried in February, 1891, resulting in a verdict for the defendant. The respondent appealed to this court from the judgment under that verdict and the case was reversed by this court in an opinion which will be found in 118 Mo. 365. The mandate reversing the cause was filed in the circuit court December 31, 1893. On December 13, 1897, on motion of plaintiff, judgment was entered for defendant on the plea in abatement and the cause was ordered continued for hearing on the merits. On January 13, 1902, the record discloses that F. K. Ryan, who was attorney for the defendant, withdrew from the case, and the present counsel, Messrs. Thomas S. Meng and S. T. G. Smith, entered their appearance.

On April 11, 1902, defendant filed its amended answer to each of the counts embraced in the petition. The answers to all of the five counts are substantially the same, and in them defendant admits the execution of the note and bills of exchange, as alleged in the first, third, fourth and fifth counts of the petition, as well as the purchase of the goods, wares and merchandise as set out in the second count of said petition. Then follows in each of such answers a plea of total failure of consideration.

"And for a counterclaim and cause of action against the plaintiff defendant says that on or about January, 1890, to December 1890, defendant purchased of plaintiff large quantities of pipe and fittings; that plaintiff knew that said pipe and fittings was furnished and purchased for a particular purpose, to-wit, use in the manufacture of ice machines, and plaintiff knew that said pipe and fittings was required to be of a certain strength and character and plaintiff agreed to furnish pipe and fittings of that strength and character; that plaintiff furnished a large amount of pipe and fittings, but not of the strength and character required for said ice machines, which it had agreed to furnish; that the defects in such pipe and fittings were of such a character as not to be ascertainable by an examination of said pipe and fittings and could only be determined after said pipe and fittings had been built into said ice machines for which they were bought; that the defendant built the pipe and fittings furnished by plaintiff into various ice machines in various parts of the country; that the cost of the labor of placing said pipes and fittings in said machines was very great; that after said pipes and fittings were built into said ice machines, the pressure necessary in the operation of ice machines, and which pressure plaintiff agreed said pipe and fittings would stand, was put into the said pipe and fittings, but said pipe and fittings by reason of their defective condition would not stand the pressure, and split and broke, thus rendering it necessary to take the said ice machine to pieces and to replace said pipes and fittings with pipe and fittings of the strength and character necessary in ice machines and which was the kind of pipe and fittings plaintiff agreed to furnish to defendant. That the cost of taking said pipe and fittings out of said ice machines and replacing the new pipe and fittings was very great, to-wit, $ 7,000; that defendant demanded of plaintiff payment of said damages on or about the 1st day...