Perry v. Vanmatre

• Decision Date: 11 December 1913
• Parties: E. N. PERRY, Appellant, v. F. M. VANMATRE, Respondent
• Court: Missouri Court of Appeals

161 S.W. 643

176 Mo.App. 100

E. N. PERRY, Appellant, v. F. M. VANMATRE, Respondent

Court of Appeals of Missouri, Springfield

December 11, 1913

Appeal from McDonald County Circuit Court.--Hon. Carr McNatt, Judge.

AFFIRMED.

Judgment affirmed.

J. A Sturges for appellant.

(1) Instructions A and B given for the defendant are in direct conflict with No. 1 given for plaintiff. This is reversible error. Bluedorn v. Railroad, 108 Mo. 449; Baker v. Railroad, 122 Mo. 595; Frederick v. Alger, 88 Mo. 602; Stone v. Hunt, 94 Mo. 479; Mansur-Tibbetts Co. v. Richie, 143 Mo. 612; Majtylock v. Coal Co., 188 Mo. 283; Sheperd v Transit Co., 189 Mo. 373. (2) The instructions for defendant do not conform to the defense set up in the answer. Houston v. Tyler, 140 Mo. 264; Burk v Pence, 206 Mo. 332. (3) Defendant sets up an express warranty and it was error to instruct on an implied warranty. Houston v. Taylor, 140 Mo. 263; Pavement Co. v. Smith, 17 Mo.App. 264; Fruit & Truck Assn. v. Hartman, 146 Mo.App. 168. (4) There was error in admitting evidence, as to the condition of the jack shortly before he died, and at the same time conditionally excluding it from the jury.

O. R. Puckett for respondent.

(1) A failure to file a reply when a reply is required, or the failure of a reply to deny certain material facts averred in the answer, is an admission of the truth of the material allegations of the answer not denied. 31 Cyc. 264; St. Joseph v. Gibson, 110 Mo.App. 237; Huber v. Hunter, 87 Mo.App. 50. (2) While an express warranty will not include an implied one about other matters, it will as to matters the former embraces. Fruit Assn. v. Hartman, 146 Mo.App. 155. (3) Instructions A and B state the law of this case applicable to the pleadings and evidence. Danforth v. Crookshanks, 68 Mo.App. 311; Young v. Van Natta, 113 Mo.App. 550; Moore v. Emerson, 63 Mo.App. 137; Compton v. Parsons, 76 Mo. 455; Murphy v. Gay, 37 Mo. 535; Brown v. Weldon, 99 Mo. 567; 35 Cyc. 380, 381, 388, 393, 400. (4) Instructions A and B are not in conflict with instruction No. 1. They are simply broader than instruction No. 1, which does not include all the law of the case.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

Rube, a big Kentucky jackass, is the subject of this action. Rube died before the litigation commenced and knows nothing of the trouble he left behind. An alleged warranty concerning what he was and what he was capable of doing at the time he was sold to defendant by the plaintiff is presented for review.

The petition counts on a note for $ 1000, given by defendant to plaintiff in consideration of two jacks, Rube and Frank, on which note with interest, after deducting credits, there was alleged to be due the sum of $ 750.

Defendant in his answer admitted buying the jacks and executing the note, but pleaded:

"That said jacks were purchased to be used for breeding purposes and to be stood by defendant at his farm in this county and to be let to service of mares on custom for profit, which fact was well known to plaintiff at the time; that plaintiff, well knowing the purpose for which defendant wanted said jacks, and in order to induce him to make said purchase, represented to defendant that said jacks were sound and healthy; and the larger jack, Rube, was a good breeder and sure foal getter, and defendant, relying on plaintiff's said representations, was induced thereby to purchase said jacks and execute the note sued on; that the jack, Rube, was unsound and unhealthy, was not a good breeder and was not a sure foal getter; that he was infected by a secret malady and an undeveloped latent disease at the time, and shortly thereafter his legs and body broke out in enormous sores, his hair came off in large quantities, he refused to eat and continued to decline from the date of his purchase until the month of October, 1910, when he died. That the mares served by him failed to get with foal, and he was worthless for the purpose for which he was purchased, or for any other purpose. That the relative value of the jack, Frank, does not exceed $ 500 on the basis of the agreed value of $ 1000 for the two jacks. Wherefore, defendant says that after deducting the credits endorsed on said note, he is indebted to plaintiff in the sum of $ 67.55."

The reply is not set out in the abstract, but it is stated that the reply denied each and every allegation as to failure of consideration.

The jury returned a verdict for plaintiff for $ 67.55, and the case is here on his appeal.

Defendant's testimony as to the warranty is as follows: "He represented this jack, Rube, as a great breeder and a sure foal getter and sound and all right. Q. I believe you said these representations as to his being a good breeder and a sound animal were made by Mr. Perry before you bought the jack? A. Yes, sir."

Plaintiff as a witness did not deny this. Indeed, there is at no place in the record a denial that plaintiff made the warranty set up in defendant's answer. Plaintiff proceeded at the trial on the theory of admitting the making of the oral warranty but denying that a breach had occurred. Plaintiff and his witnesses testified that the jack at the time of the sale and at different times during the year 1909 after defendant bought him was fat--in good flesh--in good condition--in good life--quick to serve--appeared healthy and had no scars or sores.

As appellant's assignments of error do not require a detailed review of the evidence introduced at the trial, it is enough to say that as to the jack's condition at the time of the sale and for some months thereafter the evidence is in irreconcilable conflict. The purchase occurred at plaintiff's farm in Arkansas on March 16, 1909, and the jack died at defendant's farm in Missouri in October, 1910.

As it will be necessary to refer to the instructions from time to time throughout the opinion, they are here set out.

The court, at plaintiff's request, gave this instruction:

"1. The note sued on in this case was given as the purchase price of two jacks sold by the plaintiff to the defendant, and defendant seeks to avoid the payment of the balance due on the note on the ground that one of the jacks was diseased at the time of the sale and finally died of such disease. You are therefore instructed that it rests on the defendant to prove to your satisfaction by a preponderance of the evidence that the disease from which the jack died was not caused by the acts or treatment of him by the defendant, but existed at the time of such purchase and giving of said note."

The court, at defendant's request, gave these instructions:

"A. The court instructs the jury that one who sells personal property to be used for a particular purpose, impliedly warrants that it is reasonably suitable for the use and purpose for which it is sold and purchased; therefore, if the jury believe and find from the evidence in this case, that the note sued on was given for the purchase of two jacks, to be used and stood for breeding purposes and to be let to service to mares on custom, and that the use and purpose for which defendant purchased said jacks was known to plaintiff when selling the same, and that the jack, Rube, was worthless for the purpose for which he was sold, and was of no value for any other purpose, then there was a partial failure of consideration for said note, leaving the jack, Frank, as the only consideration therefor, and your verdict should be in favor of the plaintiff for the balance you may find due on the jack, Frank, after deducting the credits endorsed on said note.

"B. The court instructs the jury that if you find and believe from the evidence that the note sued on was given for the purchase price of two jacks, and that the plaintiff then and there represented and stated that the jack, Rube, was a great breeder and a sure foal getter, sound and healthy, and that said jack was sold and purchased for breeding purposes for hire; and if you further find and believe from the testimony that the said jack Rube, was not a great breeder or not a sure foal getter, or that he was not sound and healthy, and that by reason of any or all of said facts, if you believe them to be facts, said jack, Rube, was worthless in value for breeding purposes, and had no value for any other purpose, then there was a partial failure of consideration for said note, and your verdict should be in favor of the plaintiff for balance you may find to be due him on the jack, Frank, after deducting the credits on said note."

It appears by appellant's motion for a new trial that another instruction, "C," was given for the defendant, but it is not set out in this record. Since appellant relies almost entirely on error in the instructions for reversal, he should have brought all the instructions to this court. [Guinn v. Boas, 31 Mo.App. 131.] The rule was long ago announced that "where a record discloses that other instructions were given which are not stated, we cannot reverse for the giving of instructions which do not involve some substantial error prejudicial to the appellant." [Haegele v. Western Stove Co., 29 Mo.App. 486; Harris v. Powell, 56 Mo.App. 24.]

Appellant contends that since respondent defended by alleging an express warranty in his answer, it was error to instruct on an implied warranty as was done by instruction "A."

The plaintiff, having to all intents and purposes admitted that he made the warranty alleged in defendant's answer, to-wit, that the jack was sound and healthy, a good breeder and sure foal getter, could not complain of an instruction on such warranty, for example, an instruction along the line followed in instruction "B." The undisputed evidence is that defendant bought the jack to use in the...