Nichols, Shepherd & Co. v. Larkin

• Decision Date: 31 October 1883
• Citation: 79 Mo. 264
• Parties: NICHOLS, SHEPHERD & Co., Appellants, v. LARKIN.
• Court: Missouri Supreme Court

79 Mo. 264

NICHOLS, SHEPHERD & Co., Appellants,

v.LARKIN.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

Wallace & Chiles for appellants.

A. Graves and A. F. Alexander for respondents.

PHILIPS, C.

Plaintiffs below, and appellants here, a corporation, sued defendants, respondents here, on a contract in the form of a promissory note, for the sum of $167.50, dated July 6th, 1878, payable on or before the 1st day of October, 1878, with interest at ten per cent per annum from date, and if paid on or before maturity a discount of $6.70 was to be made.

The answer admitted the allegations of the petition; and for matter of special defense pleaded that the consideration of said note was a certain machine for threshing and cleaning wheat and seeds, consisting of a separator, to be driven by tumbling rod and gear, etc., also of one sixteen-foot straw stacker complete, etc., also one of plaitniffs' improved Woodberry spur-speed mounted horse powers, for ten horses, with certain described attachments; that the contract therefor was made on the 23rd day of May, 1878, to be delivered on or about the 25th day of June, 1878, at Concordia, Missouri--the whole consideration for which was four several promissory notes for $167.50, payable respectively on October 1st and December 1st, 1878, and October 1st and December 1st, 1879. The answer further alleged that by said agreement it was stipulated, among other things, that if defendants failed to make said machine operate well, defendants were to give notice to Deere, Mansur & Co., the dealers at Kansas City through whom they purchased the machine, and also to the plaintiffs at Battle Creek, Michigan, in writing, and if the fault was in the machine the same was to be taken back, or the defective parts repaired by plaintiffs and the machine made to conform to others of plaintiffs which could operate well. The answer averred certain defects in the operation of the machine; and that “on the 9th day of July, 1878, the defendants duly notified the plaintiffs and their said agents, in writing, of the deficiency in said machine, but that plaintiffs neglected their duty in that respect.”

The reply denied the defects in the machine and specifically denied the giving of the notice as alleged in the answer, and pleaded various neglects of defendants in complying with the requirements of the contract.

The defendants put in evidence a memorandum of contract between the plaintiffs and the firm of Deere, Mansur & Co., of Kansas City, Missouri, by which the plaintiffs residing at Battle Creek, state of Michigan, constituted Deere, Mansur & Co. their agents, within a specified territory, for the sale of such machines. Deere, Mansur & Co. were authorized to appoint sub-agents, and to use their best endeavors to sell as many of said machines as possible to good parties upon such terms, etc., as are named in said Nichols, Shepherd & Co.'s printed circulars of terms, or as said Nichols, Shepherd & Co. may from time to time advise. Also a contract between plaintiffs and Thieman Bros., of Concordia, Lafayette county, Missouri, by which plaintiffs agreed to furnish the latter machines, during and until the 1st day of November, 1878, to be sold on commission on certain conditions therein specified, among which were that plaintiffs should furnish them circulars and orders and to furnish machines if taken in conformity with the terms of this agreement. The seventh section of this agreement is as follows: “The part of the second part agrees to sell said machines, subject only to the regular printed warranty contained in the blank orders for this year, furnished by the parties of the first part, and will not permit a machine to be returned, nor refund any payment to a purchaser until due notice has been given the said party of the first part, and their written consent obtained.” Also the contract of purchase of the machine in controversy between defendants and Deere, Mansur & Co., of date of May 23rd, 1878, by which they directed said Deere, Mansur & Co. to ship to them at Concordia, Missouri, in care of said Thieman Bros. one of said machines, certifying in said order in writing that they agreed to receive the machine subject to all the conditions of the warranty printed below on said order, by giving their notes in payment therefor, as hereinbefore expressed in the answer. The warranty referred to contained the following provisions: “This machine is ordered, purchased and sold, subject to the following express warranty and agreement: That with good management it is capable of doing a good business in threshing and cleaning grain, and is superior to any other kind of machine or to any “endless apron' thresher manufactured in the United States in its adaptation for separating and saving from the staw the various kinds and conditions of grain and seeds with less waste, less litterings and less detention from wet or bad conditioned straw or wet weather, conditioned that upon starting this machine the undersigned purchasers shall intelligently follow the printed hints, rules and directions of the manufacturers, and if by so doing they are unable to make it operate well, written notice, stating wherein it fails to satisfy the warranty, is to be immediately given by the undersigned purchasers to the dealer through whom purchased and also to Nichols, Shepherd & Co., Battle Creek, Michigan, and reasonable time allowed to get to it and remedy the defect, if any, unless it is of such nature that they can advise by letter.” This order with warranty was signed by defendants under seal.

At the trial it was agreed by the defendants before the court and jury, that the only defects claimed were in the horse power. Defendants offered evidence tending to show defects in the horse power. To this proof plaintiffs objected for the reason that the warranty did not cover such defects in the horse power, and because no such issue is made in the pleadings. Objection overruled and proof admitted.

The evidence further tended to show that one of the Thiemans went to the field where defendants were working the machine and worked on it, trying to rectify the alleged defect; and one of defendants suggested that they had given the machine a fair trial and that it would not work, and now was the time to notify the plaintiffs to take the same back; whereat Thieman said, “You need not bother yourself about the order; I will give it myself; I am Nichols, Shepherd & Co.'s agent.” This plaintiffs also objected to because the said Thieman had no power to waive such notice or to change the contract requiring notice to plaintiffs and to Deere, Mansur & Co. There was no other notice given.

The horse power cost about $210. Defendants laid it aside and bought another. Defendants used the horse power to thresh their wheat, and about 800 bushels for a neighbor and 5,000 elsewhere. Defendants got from Thieman certain new parts, etc. The machine was not returned.

Plaintiffs' evidence tended to show that Thieman had no other authority as agent than that expressed in the written contract, and that the machine performed well enough after some rectifying by them; that they furnished a new shaft for the machine, after which they heard no complaint, and had no other notice from defendants of any dissatisfaction. Thieman testified that the notice he agreed to give was to write to Deere, Mansur & Co. to send an expert and notice of defective shaft, and order new one, which he did do.

The instructions asked in this case are unnecessarily voluminous. I shall only present here such as, in my opinion, are pertinent to the points to be decided. The court refused the following asked by plaintiffs:

2. Under the terms of the contract between plaintiffs and defendants there is no warranty concerning the alleged deficiencies in quality and parts of the horse power, and the jury will not allow defendants any damages by reason of such alleged deficiencies.

6. Under the terms of the contract for the purchase of said machinery, both Deere, Mansur & Co. and Nichols, Shepherd & Co. were to be notified in writing of any deficiencies or faults therein, and neither Thieman Bros. nor Lewis Thieman had any right or power to waive such notice, and if they assumed the responsibility of giving such notice they did so as the agents and at the risk of defendants, and any failure to so give such notice resulted from defendants' own neglect of duty.

7. If the jury believe from the evidence that after the shaft was put into the horse power by Lewis Thieman the said horse power still failed to work satisfactorily, and defendants still continued to use said machine without giving any notice either to Thieman Bros., Deere, Mansur & Co. or plaintiffs, and affording them thus an opportunity of remedying any further defects, the defendants by such action lost and waived any right they might have had to recover or claim damages therefor of plaintiffs, and the jury will not consider any damages claimed by defendants in this action.

12. The giving of the notice in...