Rock Island Implement Co. v. Wally

• Decision Date: 19 January 1925
• Docket Number: No. 14882.,14882.
• Citation: 268 S.W. 904
• Parties: ROCK ISLAND IMPLEMENT CO. v. WALLY
• Court: Missouri Court of Appeals

268 S.W. 904

ROCK ISLAND IMPLEMENT CO. v. WALLY

No. 14882.

Kansas City Court of Appeals. Missouri.

January 19, 1925.

Rehearing Denied February 9, 1925.

Appeal from Circuit Court, Henry County; C. A. Calvird, Judge.

"Not to be officially published."

Action by the Rock Island Implement Company against Andrew Wally, in which defendant filed a counterclaim. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Gossett, Ellis, Dietrich & Tyler, of Kansas City, and Owen & Son, of Clinton, for appellant.

John A. Gilbreath, of Clinton, N. B. Conrad, of Montrose, and C. A. Calvird, Jr., and Jas. A. Parks, both of Clinton, for respondent.

TRIMBLE, P. J.

Plaintiff's suit is in two counts, the first on a note for $3,094.50 less a credit of $1,000, and the second on open account for an unpaid balance of $4.90. Both note and account grew out of a contract between plaintiff and defendant, whereby the former sold to the latter certain farm tractors to be sold by the latter throughout a certain territory in and about Henry county, Mo., and for the purchase price of which the note in question was given; the account being for tools, supplies, and repairs purchased, used and necessary in connection with said tractors.

The defense set up is rescission of said contract and purchase, founded upon alleged false and fraudulent representations whereby defendant was induced to enter into said contract, make said purchase, execute said note, and create the account. The answer also pleaded a counterclaim for damages in the sum of $5,441.80, by reason of the alleged false and fraudulent representations, and based further upon an alleged breach of warranty as to the fitness for use of the goods sold, the same being said to be wholly unfit for use and unmarketable. The answer further pleaded failure of consideration of the note because of the total unfitness of said goods for the purpose for which they were sold and designed to be used.

The reply admitted that the tractors and power tools were sold under said contract, but set up that the note was given in payment of a part only of the tractors and power tools purchased by defendant, and that after the execution of the note in suit, plaintiff, under said contract, sold and shipped to defendant other tractors and power tools for which defendant paid. The reply denied making any false and fraudulent representations, and averred that the defendant solicited of plaintiff the right to buy from it and the exclusive right and agency to sell said tractors and power tools in said territory, and said contract was fairly and openly entered into, and that the "whole, entire essence of complete contract and all obligations assumed by the plaintiff was fully set out in said contract," whereby defendant has no right to complain about the making of said contract, nor to make the defense of fraud or breach of warranty; and the allegations in support thereof were denied.

The reply further set up that, after defendant had received the shipment of tractors and power tools, and had full knowledge of all facts in regard thereto, he retained same, expressed satisfaction therewith, and asked for further time to pay for same, whereby he waived the claim he now makes, ratified said contract, and is estopped from setting up the defenses in his answer; that he had a reasonable time to examine said tractors and tools, and, if not as warranted, to rescind said contract and demand his money back, but did not do so, and retained the goods expressing satisfaction therewith; and that it was not until market conditions in 1920 had gotten so bad that sales could not readily be made, that any complaint was raised; wherefore defendant ought not now to be heard to make complaint.

The jury returned a verdict against plaintiff both on the note and account, but found for defendant in the sum of $4,976.30 on his counterclaim. The plaintiff has appealed.

The first matter to be passed on is respondent's motion to dismiss the appeal on the ground of defective abstract of record; said motion being taken with the case at the time the latter was argued and submitted on October 11, 1924. The appeal was allowed on January 11, 1923, and, having been taken less than 60 days before the next, or March, 1923, term, was, under section 1478, R. S. 1919, returnable to the October term, 1923, which began October 1. The clerk's "shortform transcript" was filed, and the case appeared on our docket, being set for October 8. Five days before the case was reached, to wit, on October 3, 1923, a stipulation was filed agreeing that the case be continued to the December call, 1923. No permission or consent of court was asked in regard thereto. Consequently, when the case was reached on call, October 8, the court not being willing to postpone the case to the December call, continued it to the March term, 1924, and It was thereafter set by the clerk at the April call for hearing on April 24, 1924.

In proper time therefor, to wit, on March 15 and 17, respectively, appellant delivered to respondent a copy of its abstract and brief. On the last named date respondent's counsel at Clinton, Mo., wrote to appellant's local counsel there, asking for a continuance, and said local counsel forwarded the letter to appellant's chief counsel at Kansas City. The latter answered, on March 24, 1924, that they were loath to oppose a continuance, but suggested that, if one had to be, it be set over until the April call, and inclosed a signed stipulation to that effect. Three days later, to wit, March 27, 1924, respondent served notice that a motion to dismiss appeal would be filed on March 29, and the motion now being considered was filed on that date, accompanied by a printed "Respondent's Brief" which, however, dealt solely with the motion to dismiss.

On April 5, 1924 (seven days after said motion), respondent filed application and motion for continuance based on sickness of one of respondent's counsel for seven weeks prior thereto, and absence from the state of another of said counsel, whereby no opportunity had been afforded to examine appellant's 800 page abstract, and its extensive brief. Said application set forth that respondent had notified appellant's counsel and had prepared, signed and sent to them a stipulation for continuance, wherefore a continuance was prayed "with right to file and serve briefs by September 1, 1924, not. waiving hereby any matters set up in motion to dismiss."

The above motion was not acted upon, for, on the day the case was set, April 7, 1924, an unconditional stipulation was filed agreeing to a continuance to the October term, 1924. This stipulation, in addition, provided that certain original exhibits should be considered a part of the record, and that plaintiff's entire printed catalogue, and the original of the contract between plaintiff and defendant should be attached to one copy of the abstract "now on file or to be filed in said court, if appellants are furnished with or can locate such contract and exhibits." On said stipulation the case was continued to the October term, 1924.

Respondent served his briefs on appellant in July, 1924. The cause was set for hearing at the October term, on October 11, 1924, and on September 11, 1924, in ample time for the hearing, appellant served respondent with an abstract of record, and an exact copy of the brief appellant had originally served March 17. The abstract thus served, however, had been amended or corrected solely with reference to showing the steps taken in preparation for and presentation of appeal. In other respects it is the same as the abstract originally served, except that it has the matters, called for in the above stipulation, attached thereto. It is the only abstract in this cause which has been filed.

On September 23, 1924, respondent filed his motion to refuse permission to file such corrected abstract, or to strike it from the files if it had been filed. This motion was likewise "taken with the case." The grounds of the motion to dismiss are: That the abstract, to which the motion refers and is directed, does not show that either a motion for new trial or in arrest was filed, or that they were filed in time. That it shows the bill of exceptions were filed in circuit court after the time allowed for filing had expired, and fails to show that the bill of exceptions were ever filed in the circuit court.

The grounds of the motion to strike the corrected abstract from the files are: (1) That it contains matter not contained in original abstract, to wit, showing that motions for new trial and in arrest were filed at the same term, and within four days after verdict, that appeal was allowed, appeal bond filed and duly approved, and time granted until during September term, 1923, to file bill of exceptions. (2) That respondent prepared his brief on the motion to dismiss, with reference to the original abstract served. (3) That the corrected abstract adds new and material matter not contained in the original abstract, and no agreement of counsel was made that such abstract, as amended, should be served and filed.

In strenuously urging the motions, respondent apparently loses sight of or ignores the effect of the continuance from the April call of the March term to the October term, 1924. In cases of transfer from the appellate to the Supreme Court, appellant has the right to file corrected abstract in the latter court, provided it is served and filed in time for the latter hearing. Williams v. Kansas City, etc., R. Co., 288 Mo. 11, 231 S. W. 954. And where a rehearing has been granted the same right exists. Starr v. Penfield (Mo. App.) 205 S. W. 540, and same case in Supreme Court, 205 S. W. 541. On such rehearing the case comes up for hearing de novo just as if it had appeared then for the first time. The same right would, on principle, seem to exist, where, by reason of continuance to a subsequent term, the case has not come up for actual...