Progressive Finance & Realty Co. v. Stempel

• Citation: 95 S.W.2d 834,231 Mo.App. 721
• Parties: PROGRESSIVE FINANCE AND REALTY COMPANY, INC., APPELLANT, v. ROBERT STEMPEL, DOING BUSINESS AS STRAND THEATRE, RESPONDENT
• Decision Date: 14 July 1936
• Court: Court of Appeal of Missouri (US)

95 S.W.2d 834

231 Mo.App. 721

PROGRESSIVE FINANCE AND REALTY COMPANY, INC., APPELLANT, v. ROBERT STEMPEL, DOING BUSINESS AS STRAND THEATRE, RESPONDENT

Court of Appeals of Missouri, St. Louis

July 14, 1936

Rehearing denied July 20, 1936.

Appeal from Circuit Court of St. Charles County.--Hon. Edgar B Woolfolk, Judge.

AFFIRMED.

Judgment affirmed.

Sheridan Sheridan & Robertson and Hugh D. McCorkle for appellant.

(1) The order given by defendant was for a definite, known and described thing, to be installed by himself. In such case, there is no implied warranty and fitness for a particular use for which it was intended, even though the seller knew for what use it was intended. Seitz v. Brewers Refrigerating Co., 141 U.S. 510; Mark v. Cooperage Co., 204 Mo. 242, l. c. 264; Lindsborg Milling & Elevator Co. v. Danzero, 189 Mo.App. 154, l. c. 161. (2) The installment of the reproducing unit was to be made by defendant. The fact that it was to be installed under the "supervision" of the engineer of the seller, does not place the responsibility on him for the defective work (like broken wires, and unconnected batteries called for in the blue prints) by defendant's own workmen. He might supervise and direct, but he could not be answerable if defendant furnished him with careless or incompetent workmen. This feature distinguishes this case from those in which the seller contracts to furnish and install a completed article. (3) Under the evidence, in this case, it was fairly shown that at the time plaintiff purchased defendant's note the maturities of the unpaid installments had been advanced four months, and that plaintiff became an innocent purchaser for value, without notice and before the maturity of any installment, and, as such, his rights were not affected by any defenses that defendant might have against the payee of the note. McCorkle v. Miller, 64 Mo.App. 153. (4) "When a person makes a representation or a promise, expecting and intending it to be acted on by another, or is made or done under circumstances that the other had a right to believe that it was so intended, and that the other relying on said representation or promise does act on said promise or representation to his detriment, then the person making such representation or promise will be estopped from assuming a position contrary to said promise or representation." Stone v. Hart, 66 S.W. 191; Fugate v. Hansford, 3 Litt. (Ky.) 262; Morrison v. Beckwith, 4 T. B. Mon. 73; White v. Walker, 31 Ill. 437; Faxton v. Faxon, 28 Mich. 189; Stayton v. Graham, 139 Pa. St. 1; City of Columbus v. Dahn, 38 Ind. 330; Wilder v. City of St. Paul, 12 Minn. 192; Crine v. Davis, 68 Ga. 138; Henry v. Brown, 19 Johnson 49. (5) "The general rule is that an assignee acquires no greater rights against the debtor than the assignor possessed. But this rule is subject to the qualification that the debtor may by his representations or conduct estop himself to interpose against the assignee such defenses as would have been otherwise available to him against the assignor." Securities Inv. Co. v. International Shoe Co., 5 S.W.2d 682; Parker v. Funk, 185 Cal. 347; Dissenting opinion, Males v. Lounsbury, 193 Wis. 531, l. c. 537; Henry v. Brown, 19 Johnson's Rep. 49; Petrie v. Feeter, 21 Wend. 172; Fugate v. Hansford, 3 Litt. 262; Morrison v. Beckwith, 4 T. B. Monroe 73. (6) "A party may waive any provision either of a contract or of a statute intended for his benefit, unless it is against the public morals or public welfare. Parties to suits may assert their rights to the fullest extent, but are not permitted to deceive either actively or passively his adversary and courts will take care that on the trial of a cause neither party shall reap any advantage from his own fraud." Shutte v. Thompson, 15 Wall. (U.S.) 151, l. c. 159. (7) The respondent waived the benefit of the statute that would have enabled him to set up failure of consideration as against the appellant, and such waiver was lawful and effective to deprive him of its benefits. Waiving benefits of statutes is widely prevalent. Young v. Ledford, 99 Mo.App. 565; State v. Lloyd, 87 S.W.2d 418. (8) Consideration may be a benefit passing to a contracting party or it may be a prejudice or detriment to the other party. Hauck v. Frisbee, 66 Mo.App. 16; Williams v. Jensen, 75 Mo. 68; Black's Law Dictionary (title consideration); Crine v. Davis, 68 Ga. 138. (9) A promise, express or implied, if another has taken action in reliance on it, may bar a defense not yet arisen, which might otherwise defeat a recovery on an obligation. Colbath v. Stebbins Lum. Co., 127 Me. 406, l. c. 415; Shields v. Smith, 37 Ark. 52; Crine v. Davis, 64 Ga. 138; Combes v. Chandler, 33 O. St. 178; Russell v. Turner, 14 Ga.App. 344. (10) The provision in this contract barring a defense against any assignee of the note and contract is a separate and distince contract with the assignee that cannot be abrogated or interfered with by the assignor, or defeated by the failure or default of the assignor in performing his contract. Gordon v. N.W. Natl. Ins. Co., 77 S.W.2d 512, l. c. 520; Hauck v. Frisbee, 66 Mo.App. 16; Hunt v. Dean, 72 S.W.2d 832.

John F. Clancy and Jesse T. Friday for respondent.

(1) Where an article is sold to do a particular work, the law implies a warranty that it will reasonably accomplish the purpose for which it was constructed and sold. Creasy v. Gray, 88 Mo.App. 454; Aullman, Muller & Co. v. Hunter, 82 Mo.App. 632; Skinner v. Kerwin Ornamental Glass Co., 77 S.W. 1011, 103 Mo.App. 650; Ferguson Implement Co. v. Parmer, 107 S.W. 569, 128 Mo.App. 300; Laumeier v. Dolph, 130 S.W. 360, 145 Mo.App. 78; Lindsborg Milling & Elevator Co. v. Danzero, 174 S.W. 459, 189 Mo.App. 154; Eisenbarger v. Wilhite, 238 S.W. 159; Emerson v. Brantingham Implement Co., 186 S.W. 1181; J. B. Colt Co. v. Presler, 274 S.W. 1100; National Cash Register Co. v. Layton, 232 S.W. 1091, 207 Mo.App. 454; Columbia Weighing Machine Co. v. Young, 4 S.W.2d 828. (2) A negotiable promissory note payable in installments is not deprived of its negotiability by the maturity of an installment, if this be paid; sed aliter, if any installment is due and unpaid. In the latter case the purchaser of a note takes it subject to all equities, though it contains a false endorsement of the payment of the matured installment. Munday v. Clements, 58 Mo. 577; Vette v. La Barge, 64 Mo.App. 179; McCorkle v. Miller, 64 Mo.App. 153; Vinton v. King, 4 Allen 562; Field v. Tibbetts, 57 Me. 359; Merchants National Bank v. Brisch, 136 S.W. 28, 154 Mo.App. 631; Yeomans v. Nachman, 198 S.W. 180, 198 Mo.App. 195. (3) Contracts to waive rights of defenses given only by statute are void as being in contravention of such statutes and as against public policy. San Francisco Securities Corporation v. Phoenix Motor Co., 25 Ariz. 531, 220 P. 229; Am. Natl. Bank v. Sommerville, 191 Cal. 364, 216 P. 376; Parker v. Funk, 185 Cal. 347, 197 P. 83; Malas v. Lounsbury, 193 Wis. 531, 214 N.W. 332; Munday v. Clements, 58 Mo. 577; Brucker v. Georgia Casualty Co., 32 S.W.2d 1088; Cobble v. Royal Neighbors of Am., 236 S.W. 306; Blanton v. Dold, 18 S.W. 1149, 109 Mo. 64; Hartman v. C. B. & Q. R. Co., 182 S.W. 148, 192 Mo.App. 271; Hughes v. Miss. River B. T. Ry., 274 S.W. 703, 309 Mo. 560; Curtis v. McNair, 73 S.W. 167, 173 Mo. 270; Jewell v. K. C. Bolt & Nut Co., 132 S.W. 703, 230 Mo. 176; Strickland v. F. W. Woolworth & Co., 127 S.W. 628, 143 Mo.App. 528; Jarrell v. Blackbird Block Coal Co., 136 S.W. 754, 154 Mo.App. 552; Flaiz v. C. B. & Q. R. Co., 184 S.W. 917, 194 Mo.App. 472.

SUTTON, C. Hostetter, P. J., Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

--This action is founded on a promissory note dated October 23, 1929, for $ 2703, payable in monthly installments of $ 225.25 each, the first installment being payable on November 23, 1929. The note was given to the North American Sound and Talking Picture Equipment Corporation, for a part of the purchase price of one Type 1 M. D. Tone-O-Graph Reproducing Unit, consisting of two turn tables, two pick ups, one Double Channel Amplifier, one Monitor Horn and two Dynamic Speakers, one Fader and one Sound-on-Film equipment, sold by the North American Sound and Talking Picture Equipment Corporation, to the defendant on October 23, 1929, for the price of $ 3050, plus a carrying charge of six per cent. At the time of the purchase defendant paid the North American Sound and Talking Picture Equipment Corporation $ 500 in cash. This left a balance due, including the carrying charge, of $ 2703, for which the promissory note was given. On February 7, 1930, defendant paid to the North American Sound and Talking Picture Equipment Corporation the first installment of $ 225.25, which according to the terms of the promissory note fell due on November 23, 1929. The sale, which was a conditional one, was evidenced by a written contract, of even date with the promissory note, executed by the North American Sound and Talking Picture Equipment Corporation and the defendant. On March 1, 1930, plaintiff notified defendant that the contract of sale and the promissory not had been assigned to plaintiff by the North American Sound and Talking Picture Equipment Corporation, and that the balance due thereon was $ 2447.75.

The petition alleges the execution of the note and contract, and the assignment of them to plaintiff by the North American Sound and Talking Picture Equipment Corporation, and prays judgment for $ 2703, together with interest.

Defendant in his answer pleads breach of warranty, failure of consideration, and rescission.

The trial was had before the court without a jury, and resulted in a judgment for the defendant. Plaintiff appeals.

The plaintiff insists upon a reversal of the judgment...