Oak Lawn Sugar Company v. Sparks Bros. Mule Company
| Decision Date | 04 December 1911 |
| Citation | 141 S.W. 698,159 Mo.App. 496 |
| Parties | OAK LAWN SUGAR COMPANY, Respondent, v. SPARKS BROS. MULE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Sehree Conrad & Wendorff for appellant.
(1) The court erred in refusing appellant's demurrer to the evidence and the instruction in that nature requested at the close of all the evidence, for the reason that there was a total failure of proof upon the issue of a warranty and a breach thereof. There was no breach of warranty. Kuhler v. Tobin, 61 Mo.App. 576; Toney v. Goodley, 57 Mo.App. 235; York v. Farmers Bank, 105 Mo.App. 137; 35 Cyc., pp. 367, 368 and 369; Cement Co. v Stewart, 103 Mo.App. 182; Chanter v. Hopkins, 4 Mees. & W. 399; Ingwerson v. Railroad, 205 Mo 335; Heusler v. Stix, 113 Mo.App. 175; 35 Cyc. pp. 454 and 455; Scharff v. Meyer, 133 Mo. 445. There was no warranty proven, plaintiff purchased upon the judgment of E. V. Weems. Moore v. Koger, 113 Mo.App. 423; Mechem on Sales, secs. 1234, 1242, 1272; 35 Cyc. 376; Doyle v. Parrish, 110 Mo.App. 470; Haines v. Neece, 116 Mo.App. 499; Anthony v. Potts, 63 Mo.App. 517; Mattock v. Meyers, 64 Mo. 531; Richardson v. Coffman, 87 Ia. 21, 54 N.W. 356; Bank v. Anderson, 85 Mo. 351; Melliken v. Com. Co., 202 Mo. 655; Lindsay v. Davis, 30 Mo. 406. (2) The court erred in refusing instruction No. 3 asked by defendant. Haines v. Neece, 116 Mo.App. 510; Doyle v. Parrish, 110 Mo.App. 470, 473; Wood v. Thompson, 114 Mo.App. 38. (3) The court committed error in admitting in evidence over defendant's objections the letters of agents of the Kansas City Southern Railroad Company to the effect that the mules had not been mixed and exchanged for others at certain stations en route. 16 Cyc. pp. 1202, 1203, 1204; Johnson v. Burke, 103 Mo.App. 231; Criddle v. Criddle, 2 Mo. 522; Bloom Sons Co. v. Haas, 130 Mo.App. 122; Hoskins v. Mo. Pac., 19 Mo.App. 315; Ins. Co. v. Guardiola, 129 U.S. 642, 32 L.Ed. 802.
I. J. Ringolsky for respondent.
Plaintiff's petition states a case for breach of warranty in the sale of forty-seven head of mules. The judgment in the trial court was for the plaintiff.
Plaintiff is a corporation owning a sugar plantation in the State of Louisiana, and defendant is a corporation engaged in the business of buying and selling mules. On January 12, 1907, E. V. Weems, who was president of the plaintiff company, came to Kansas City and he and one of defendant's officers selected the forty-seven head from a large number which defendant had in pens upon its premises. The petition alleges that twenty-three of the forty-seven were warranted to be sixteen hands high; that twenty-two were warranted to be from 15 3/4 to sixteen hands high; and two to be 15 1/2 hands high. It was plaintiff's purpose to ship the mules to Louisiana by railway and it is alleged in the petition that defendant agreed to load them on the cars.
Great space is taken in the record concerning the weight of the mules and on the subject of what is considered "a sugar" mule and "a cotton" mule. But we put that aside for the reason that the petition simply states a warranty of the height of the animals.
Defendant insists with much force that, in point of fact, there was no warranty made by defendant. There is much testimony, even that of Weems himself, which tends to prove there was no warranty. He admits that he helped to separate from the others the mules he bought, that he picked out the ones he wanted and that he inspected them, taking several hours in doing this. In addition to this, he had defendant put a hair brand on the jaw of each. After they were separated he testified that But the mules in dispute were not measured and it cannot be said, as a matter of law, that because a vendee sees and inspects personal property he may not also exact a warranty. Of course, where the matter alleged to have been warranted, is so clear and obvious that there could be no mistake on the part of the buyer, it then becomes manifest that he did not rely upon the warranty and nine will be held to exist. Thus, if it should be claimed that a vendor warranted a white horse, then present, to be a black horse, it would be apparent that no reliance could have been placed on such statement. But a vendee may realize his liability to mistake in judgment, or otherwise, and demand a warranty as a cautionary measure. In this case it may be that Weems would have taken the precaution to put the standard to each mule if he had not had the warranty as to height. He testified, pointedly, that he had defendant's express warranty; and there was much other evidence tending directly, and by inference, to support what he said. So, therefore, we think that the question was properly for the jury and that the court did not err in refusing the demurrer so far as this branch of the defense is concerned. [Woods v. Thompson, 114 Mo.App. 38, 88 S.W. 1126; Harrington v. Smith, 138 Mass. 92; Gould v. Stein, 149 Mass. 570, 22 N.E. 47; 2 Mechem on Sales, sec. 1275.]
It is next insisted that if there was a warranty, there was no evidence of a breach. The point to this contention is this: That the mules received at the destination in Louisiana were not the mules that were warranted. This could be true in two ways, first, defendant may not have shipped the mules sold and warranted; or, though shipped, they may have become exchanged or mixed with other mules of a different class while in transit, whereby none, or only a part, arrived at destination. This question arises out of the character of the evidence in plaintiff's behalf. Weems, who is the only person who saw and selected the mules in Kansas City, and who also saw the mules which reached Louisiana, testified positively that, as we have already stated, he helped to select the mules in Kansas City and that they exactly filled the description, including height, of the kind he wanted. Yet when he saw the mules in Louisiana, he was shocked at their appearance and stated that they were, with few exceptions, much smaller and of a different class and that he "did not believe" then, and did not believe at the trial, that they were the same mules.
If they were not the same mules, by reason of loss while in transit, of course the comparison made by witnesses was on a false basis and the case was without evidence that the mules sold were not as warranted. And the same result would follow if the mules sold were not taken to Louisiana by reason of defendant fraudulently substituting other mules in their stead. In such instances the action would not be for breach of warranty. The warranty alleged and relied upon was of a certain and specific lot of mules then present and then selected by the parties. It was not a warranty that mules of a certain description would be shipped and that they would reach Louisiana. The only evidence which can sustain plaintiff's case as to a breach of the warranty, must be something to show that those separated, selected and sold were not of the height warranted. It does not sustain the case to show that some other mules were not of that height.
But there was other evidence, which tended to show that the mules bought in Kansas City were the ones which arrived in Louisiana, and we are of the opinion that the corporate plaintiff ought not to be concluded, as a matter of law, by the fact that one of its officers who transacted the business, did not believe the property was the same. There was other evidence tending to show that he was mistaken and that they were the same, We therefore rule that a question whether there was a breach of the warranty was made for the jury.
The next matter presented concerns the instructions. Number 1, for plaintiff, properly submitted the case on the warranty. The hypothesis was submitted whether a warranty was made and whether it was relied upon by Weems.
The second instruction was on the measure of damages. We take it that the damages should be ascertained by deducting the market value at Kansas City of the mules plaintiff got, from the price paid for those he was to get. And this we understand to be the meaning of the instruction. No vexed question as to expected profits, or as to one being entitled to his bargain, etc., appears in the case.
But while plaintiff was thus allowed...
To continue reading
Request your trial