Nickerson v. Whalen

• Decision Date: 08 December 1952
• Docket Number: No. 21758,21758
• Parties: NICKERSON v. WHALEN.
• Court: Missouri Court of Appeals

Page 502

253 S.W.2d 502

NICKERSON v. WHALEN.

No. 21758.

Kansas City Court of Appeals, Missouri.

Dec. 8, 1952.

C. W. Allen, Rock Port, John M. Gerlash, Tarkio, for appellant.

Fred Kling and E. L. Redman, Albany, for respondent.

DEW, Judge.

The plaintiff (appellant) sued to recover a balance claimed to be due him from defendant on a written lease to defendant of a 'caterpillar' grading tractor. Defendant denied the claim, alleging breach of contract by the plaintiff, rescission by the defendant, and pleaded a counterclaim for damages for the breach, and a counterclaim for grading work done for the plaintiff. Verdict was for the defendant on plaintiff's petition, and for the defendant on each of his counterclaims, awarding him $1 damages on each. Judgment was rendered accordingly, with costs assessed against the plaintiff. Plaintiff has appealed.

Plaintiff's petition alleged the execution of a written lease on August 9, 1948, by and between plaintiff and defendant, whereby plaintiff rented to defendant (with option to purchase) a certain Allis-Chalmers Gasoline Model 'S' self-laying track tractor for the term of nine months from date; that defendant agreed therein to pay a rental of $700 a month; that defendant took possession of the machine and by the terms agreed to pay and become liable for the breakage and repair of same; that defendant paid $700 on August 9, 1948, $700 on September 8, 1948, and $600 on November 8, 1948, and that defendant did certain work for the plaintiff, for which plaintiff credited the defendant with $240, but that the balance of $4060 due as rent under the lease is unpaid; that defendant agreed in the lease to keep the tractor in repair and to pay for such repairs. It is further alleged that plaintiff furnished and paid for repairs on the tractor in the sum of $406.50, which defendant agreed to pay and refused to do so, making a total amount due the plaintiff of $4,466.58, for which plaintiff seeks judgment.

The copy of the lease attached to the petition as an exhibit is in its material aspects substantially as pleaded, describing the tractor as '1-Allis-Chalmers Gasoline Model 'S' self-laying track tractor, Serial No. ___,' but as to the repairs the lease provides that all ordinary breakage in the regular course of operation of the equipment was to be at the cost of the lessee, who agreed if the machine were returned to the lessor, to put it in as good a condition as received, subject to wear and tear, and to take care and keep the tractor in as good a condition as he would if it were his own property. The total amount of the rental is stated as $6000, the ninth installment to be $400, all subject to adjustment as mutually agreed, an option to purchase the property at the sum of $6000 at any time being granted to the lessee, the rentals paid to be applied to the purchase price.

By his answer defendant admitted the written lease, denied that he owes anything under its terms, asserted that he has paid all that is due thereunder, $2100; that he had the privilege under the lease to terminate it at any month of the rental period; that he fully satisfied the lease in October, 1948, paid the amount due, and returned the tractor to the plaintiff; that after the written lease had been so settled, the plaintiff orally requested the defendant to retake the tractor and warranted that it would be put in a condition so it could be used in defendant's business of grading, the rental to be $700 a month thereafter; that relying upon such representations and warranty, defendant paid the plaintiff $700; that the plaintiff wholly failed to place the tractor in such condition of repair, so that defendant could use the same in his grading business, although often requested so to do, and thereby breached his contract; that defendant was unable to use the tractor; that defendant's own grading equipment was under lease to a railroad and he was in need of an additional caterpillar tractor to perform 'by the hour' grading contracts; that at the time of the written lease plaintiff, as an inducement, represented to him that he had such a tractor then being overhauled and completely rebuilt with new parts, and which would be as good as new and suitable for defendant's business, and so warranted the same, and relying thereon, defendant executed said lease; that except for such representations and warranties he would not have signed the lease; that in truth and in fact such representations were false and untrue; that the machine was defective, was in need of additional parts and repairs, and he was unable satisfactorily to perform his grading contracts therewith although plaintiff, on notice from the defendant, promised to repair same and failed so to do, and as a result thereof, defendant returned the tractor to plaintiff in October, 1948, having paid $2100 for rental, under the lease, and said lease was thereby fully settled.

For his first counterclaim the defendant alleges that by reason of plaintiff's said breach of contract, defendant has lost time, rent money and business, and has paid for some repairs on the tractor, all to his damage in the sum of $5000.

For his second counterclaim defendant states that plaintiff hired him to perform certain grading work for himself with defendant's own equipment, for which the charge was $639 for furnishing the labor and machinery, which plaintiff has failed and refused to pay.

The evidence was that at the time the lease was made, plaintiff, a dealer in seeds and appliances, had acquired in settlement of a debt to him, the 1936 model tractor in question, and had placed it in a shop to be rebuilt. He had obtained a 30 day unconditional guarantee from the repair shop, and for an additional 30 days thereafter parts furnished by the owner would be installed without charge by the shop. Plaintiff paid $3187.82 for the overhauling job. Defendant, a grading contractor, had his own grading machinery under lease to a railroad and needed a small tractor to perform 'by the hour' grading jobs available. Through a local banker defendant learned of the plaintiff's tractor being overhauled, had conversations regarding the lease or purchase thereof, and a lease was prepared by the banker on a form furnished by the defendant, which was executed by the parties.

Over the objections of the plaintiff, he was required to testify on cross-examination as to conversations prior to the execution of the lease and said he told defendant he was having the tractor rebuilt 'from the bottom up', and told him of the shop's guarantee, and that the machine would be as near like new as possible to make a used machine. Following the signing of the lease defendant several times called at the repair shop to investigate the progress on the machine and on August 18, took possession of it. Two monthly rental installments of $700 each were paid by the defendant when due. According to the plaintiff's evidence, after defendant had operated the tractor over three months and not having paid the third rental payment, the plaintiff, in November, demanded that the defendant perform his obligation under the lease and was told by the defendant that the defendant no longer needed the tractor since his own equipment had been returned by the railroad. Plaintiff demanded that defendant continue his lease contract. Defendant then complained that the tractor was unfit for his use of it, whereupon plaintiff then accompanied defendant to the repair shop and instructed that concern to make whatever repairs were needed. For repairs then made the plaintiff paid $456.14. Thereupon the defendant paid the third rental installment of $700, and retained possession of the tractor and kept it until February 29, 1949, when he returned it, refusing to make any further rental payments. Plaintiff testified that he had credited the defendant with $240 for grading work done by the defendant for the plaintiff which amount the plaintiff testified was the amount demanded for that work by the defendant.

Over the plaintiff's objections defendant introduced evidence which tended to prove that plaintiff, with knowledge of the type of work for which defendant desired to use the tractor, and prior to execution of the written lease, represented to defendant that the tractor was being rebuilt from 'the ground up', and when completed would be like new, and would carry a new guarantee; that new parts would be used where needed, and that the repair shop would guarantee the completed job as good as a new machine. Defendant testified further that he had not seen the tractor when he signed the lease, but saw it a few days thereafter, when it was not yet assembled; that proper repairs were made to the clutch and transmission, but numerous defects were found in the tractor when delivered to the defendant on August 18, 1948. Defendant immediately wrote plaintiff, but complained only that the generator would not work, and plaintiff answered that the shop was 'supposed to guarantee everything', but did nothing about it; that the tractor proved to be otherwise out of adjustment and needed other repairs and parts; the gaskets were put in backwards, sealing up the oil distribution; oil lines were improperly connected, the motor missed and lacked power, the compression was lost and it used excess oil and gasoline; the governors would not work; the blade was not level and many other defects were discovered.

Defendant's evidence also tended to prove that he used the tractor on various jobs and on October 5, told plaintiff he could not use it further unless it was fixed up. Plaintiff promised to have the shop make good its guarantee to him on the repair job. Having paid $700 at the signing of the lease, defendant also paid a second month's rent in the same amount. On plaintiff's promise to have the repairs made, defendant used the machine on four more contracts and continued to have trouble making it operate as it should. He did a job with it for one ...