Robinson & Co. v. Ligon

• Decision Date: 18 January 1910
• Citation: 124 S.W. 590,146 Mo. App. 634
• Court: Missouri Court of Appeals
• Parties: ROBINSON & CO. v. LIGON.

124 S.W. 590

146 Mo. App. 634

ROBINSON & CO. v. LIGON.

St. Louis Court of Appeals. Missouri.

January 18, 1910.

1. EVIDENCE (§ 441)—WRITTEN CONTRACT— PRIOR NEGOTIATIONS—MERGER.

Where no fraud was charged in connection with the obtaining or execution of written orders of purchase, all previous understandings or arrangements between the parties or their agents were merged in the contracts.

2. SALES (§ 87)—CONTRACT—CONSTRUCTION— EVIDENCE—ADMISSIBILITY.

In replevin for machinery sold under written orders of purchase, a catalogue describing the machinery was properly admitted in evidence as part of the sale contract.

3. EVIDENCE (§ 400)—PAROL EVIDENCE—ADMISSIBILITY —SALE CONTRACT.

In replevin for machinery sold under written orders of purchase, parol evidence as to representations or warranties or other matters outside the sale order was inadmissible.

4. SALES (§ 288)—DEFECTS IN GOODS SOLD— WARRANTIES—OBJECTIONS.

In replevin to recover machinery sold under written orders of purchase, where defendant pleaded that defects in the machinery had been fraudulently concealed, and that he did not discover them until long after the time specified in the contract for making reclamation on account thereof, an objection that defendant was concluded by the express warranty in the contract, and that he could not avail himself of the breach of it until he had complied with it on his part, was properly overruled.

Appeal from Circuit Court, Lewis County; Chas. D. Stewart, Judge.

Replevin by Robinson & Co. against Daniel Ligon. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This is an action in replevin to recover the possession of certain farm machinery, consisting of a traction engine, wind stacker, and sawmill and appliances. The writ being issued, defendant executed a retaining bond and kept possession of the property. In the answer upon which the case was tried, which was the third amended answer, after a general denial of the right of possession of the property in plaintiff or of plaintiff's right to recover, this answer sets up as a second defense that plaintiff is a corporation organized under the laws of the state of Indiana and not authorized to do business in the state of Missouri. This was abandoned at the trial. As a third defense it is averred that the plaintiff company is a member of a pool trust, and combination in violation of the laws of this state against formation of pools, trusts, and combinations. This was not sustained and was taken from the jury by an instruction of the court. As the fourth and substantial defense on the merits, the answer sets up that defendant purchased a complete threshing outfit for which he was to pay $2,042.50, the payments evidenced by notes of various dates and amounts; that he gave the notes before the property was shipped to him and before he was in possession of it; that he bought the sawmill of plaintiff "complete as described in catalogue, and was to pay plaintiff $465 therefor," and for which payments he gave notes of various amounts payable at different dates, and that, at the time of the sale of the threshing outfit, "plaintiff, by its agents, falsely and fraudulently represented to defendant that said machinery was new and complete; that it was up-to-date machinery with all of plaintiff's latest improvements; that same was free from flaws and defects of every kind, and that it was one complete threshing outfit; that in truth and fact it was not of the make or pattern, and did not have the improvements of the machinery represented to him by plaintiff's agents," setting out the various alleged defects and variances, and that parts of the machinery were second-hand, worn machinery, and the worn-out parts replaced by parts that did not fit; that the notes were given in reliance upon the representations of plaintiff and its agents, and defendant not being acquainted with the mechanism, and its defects being latent and hidden and of a nature and character known to plaintiff and its agent, but not to be seen and known by an inexperienced person like defendant, and that defendant did not discover the defects until some time after its delivery to him. Practically the same averments as to defects in the sawmill are also set up, and it is claimed that the machinery was not worth to exceed $375, and it is averred that, in ignorance of the defects, defendant has taken up notes given on the machinery to the amount of $1,142.50 and paid interest to the amount of $41.25, and that the consideration of the notes has failed in the sum of $1,532.52, and that defendant is damaged by the false and fraudulent representations made to him and by excessive payments made in the sum of $172.50, and he asks that the notes be declared satisfied and that defendant have judgment against plaintiff for the sum of $172.50 and costs.

The reply, after a general denial of the new matter, and attacking as unconstitutional the law of Missouri...