Neal v. Crowson

• Citation: 231 S.W. 1033
• Decision Date: 13 June 1921
• Docket Number: No. 13816.,13816.
• Parties: NEAL v. CROWSON.
• Court: Court of Appeal of Missouri (US)

231 S.W. 1033

NEAL v. CROWSON.

No. 13816.

Kansas City Court of Appeals. Missouri.

June 13, 1921.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

"Not to be officially published."

Action by M. T. Neal against Harold Crowson. From a judgment for defendant, plaintiff appeals. Affirmed.

Irwin & Haley, of Jefferson City, for appellant.

N. T. Cave and W. B. Whitlow, both of Fulton, for respondent.

ARNOLD, J.

This is a suit on a promissory note by the assignee thereof against the maker. On April 2, 1917, defendant purchased of one Grove R. Selby a one-half interest in two jacks, and in payment thereof gave his promissory note of that date in the sum of $400, payable in one year, at 7 par cent. interest per annum, compounded annually. After maturity the note was sold to plaintiff herein, and payment thereof was refused by defendant. The petition describes the said note and alleges demand and refusal of defendant to pay.

The answer admits the execution of the note as pleaded in the petition, and as further answer states that at the time the note was given the payee knew that defendant was purchasing said jacks for breeding purposes only, and knew that the only use and value of said jacks would be for breeding, and that defendant, relying on the knowledge of said Grove R. Selby as being true, and being deceived thereby, gave his note as above described. The answer further alleges that in truth and in fact the said jacks were not reasonably fit for breeding purposes, and that upon discovering said fact defendant tendered said jacks back to said Grove R. Selby, and rescinded the contract to purchase; that defendant kept said jacks at the request of Selby until the summer of 1918, at which time Selby agreed to rescind the contract, and took back one of said jacks, and has since retained him, and stated that he would take the other as soon as he had a suitable place to confine him. The answer further alleges that said note was purchased by plaintiff after maturity and not for value.

The reply is, first, a general denial, and especially denies warranty and that the jacks were not reasonably fit for breeding purposes, rescindment and agreement to rescind, and alleges that, for valuable consideration of a reduced price of the jacks, defendant waived guaranty, and pleads estoppel of defendant's right to claim warranty and rescission, and that there was an agreement that the jacks be divided between defendant and Selby.

The cause was tried to a jury, and resulted in a verdict for defendant. Plaintiff appeals, and makes six assignments of error.

First, plaintiff contends that the answer pleaded an implied warranty and that defendant's evidence, if it showed anything, showed an express warranty, and that there is a fatal variance between the pleading and the proof. Defendant's answer pleads an implied warranty in the following language:

"But defendant states that at the time said contract of purchase was made the said Grove R. Selby knew that the defendant was purchasing a one-half interest in said jacks for breeding purposes only, and knew that the only use and value of said jacks would be for breeding, and that this defendant, relying upon the knowledge of said Grove R. Selby as to the purpose for which jacks are used as being true, and being deceived thereby, was induced to purchase said jacks from said Grove a. Selby, and gave his said note as above described in payment thereof."

—thus pleading an implied warranty. In his testimony defendant stated:

"The morning the trade was made Mr. Selby told me how the jacks worked, and told me he would guarantee them to work that way."

This tends to prove an express warranty.

It is a matter of common knowledge among farmers and breeders that a jack has no value except for breeding purposes, and it is so alleged in defendant's answer and proved by the evidence. By the sale of the jacks by Selby to defendant the law implied a warranty that the jacks were reasonably fit for the purpose for which sold, and if they fell short of this warranty defendant's obligation was without consideration. Aultman, Miller & Co. v. Hunter, 82 Mo. App. 632.

The question of whether there was a warranty, either express or implied, was for the jury. In alleging an implied warranty, and proving an express warranty, which defendant evidently did to the satisfaction of the jury, he assumed more of a burden than the law required. We cannot say that plaintiff was in any way prejudiced by the variance between the pleadings in answer and the proof.

As further assignment of error plaintiff insists that one seeking to rescind must do so immediately upon discovering the property to be not as warranted and represented. This...