Sanders & Adkins v. John Q. Mosbarger & Son

• Decision Date: 04 December 1911
• Citation: Sanders & Adkins v. John Q. Mosbarger & Son, 141 S.W. 720, 159 Mo. App. 488 (Kan. App. 1911)
• Parties: SANDERS & ADKINS, Appellants, v. JOHN Q. MOSBARGER & SON, Respondents
• Court: Kansas Court of Appeals

141 S.W. 720

159 Mo.App. 488

SANDERS & ADKINS, Appellants, v. JOHN Q. MOSBARGER & SON, Respondents

Court of Appeals of Missouri, Kansas City

December 4, 1911

Appeal from Worth Circuit Court.--Hon. Wm. C. Ellison, Judge.

AFFIRMED (with directions).

Judgment affirmed and cause remanded.

Kelso & Kelso for appellants.

Dubois & Miller for respondents.

OPINION

ELLISON, J.

This action was brought upon a promissory note, in which a verdict was returned for plaintiffs for $ 87.30, upon which judgment was rendered.

It appears that defendants bought a gasoline "frost proof engine" from plaintiffs at the price of $ 440. Of this $ 100 was paid in cash, and two notes given for $ 170 each with interest. One of these notes was paid, but defendants claimed that only a part of the one in suit was justly due and therefore tendered to plaintiffs $ 100, before the suit was brought. The tender was refused, whereupon, after the suit was brought, defendants paid that amount into court, as per the statute in such cases.

It is insisted that the court should not have allowed defendants the opening and closing of the case. Ordinarily the plaintiff, having the burden of proving the cause of action alleged, has the opening and closing. But in this case the note sued on was admitted by defendants and the plea, in effect, was a partial failure of consideration, the burden to prove which was upon the defendants. We cannot say there was an abuse of the discretion of the court in directing defendants to open and close.

There was a written contract of sale which guaranteed the engine to be a good practical engine for "both summer and winter work, being perfectly frost proof." It failed to perform in the winter and defendants were notified. They insisted it could be made to work and then a second contract was executed, which embodied a guaranty or warranty to the effect that "the engine would start to run in cold weather as well as in warm weather," and that it was "frost proof and a good practical engine for both winter and summer work." By the terms of the contract it was agreed by plaintiffs that they would make said engine start to run in cold weather as well as in warm weather, or, if it did not, they would take it back and put another in its place. That if the plaintiffs failed to make the engine start as well in cold as in warm weather, and failed to put in a new one, then they would take back the engine sold and would refund to defendants all the money they had paid and return unpaid notes. It was agreed on defendants' part that they would take good care of the engine and "not change or alter the machinery except under instructions and specific directions of the parties of the first part." Under this agreement the engine was left with defendants and again they attempted to operate it.

The verdict, in its effect, being for the defendants, we must accept as the facts of the case whatever the evidence in their behalf tends to show and all reasonable inferences to be drawn therefrom. It may therefore be stated that the engine did not fill the guaranty. It would not operate in the winter as in the summer. Defendants' continued efforts demonstrated that it would not start in the winter time except after prolonged effort, and so notified plaintiffs. They responded and attempted to correct whatever was wrong; and yet it failed to meet the terms of the contract. One of the persons who came with plaintiffs to endeavor to fix it, said that it could not be made to operate as well in winter as in the summer; and another said no such agreement should have been made by plaintiffs.

It being a fact, as established by the verdict, that the engine failed, the parties yet differ as to their respective rights in such situation, and as to the duty each owed the other.

As we interpret the contract, it was plaintiffs' primary duty to furnish defendants with a proper engine. They did not have a right to say "we have failed and will take the engine back and return the money and notes." They were affirmatively obligated to furnish a proper engine to defendants. If they failed, they had a right to put in a new one, and it was defendants' privilege to demand it, if they chose to do so. But if plaintiffs failed to furnish an engine which filled the terms of the warranty, defendants were not under any obligation to rescind the contract and return, or offer to return, it. There is nothing in the contract requiring that action on their part. A vendee may stand on his contract, retain the property sold and maintain his action for damages for breach of the warranty, or he may resist payment of a part of the contract price; and he may do this, if he so elects, even in cases where he has a right to rescind. [Steel & Wire Co. v. Symons, 110 Mo.App. 41, 50-53, 83 S.W. 78; Brown v. Weldon, 27 Mo.App. 251, 267-273; s. c., 99 Mo. 564.]

It follows that defendants were properly allowed to prevail in the trial court unless there be error in the action taken by the court on instructions.

The first offered by plaintiffs was a demurrer, and what we have written disposes of it.

The second was properly refused in that it omits a hypothesis of substantial parts of the terms of the warranty, and directs a verdict on a part only.

The third states that if defendants kept the engine, their defense must fail, even though there was a breach of the warranty. We have already stated that was not the law.

The substance of the fourth was embodied in those given by the Court; and the fifth states a rule of damage to defendants in a way that might cause some misunderstanding. The measure of damage is definitely and properly stated in instruction No. 2 by the court. And the direction as to the burden of proof stated in plaintiffs' No. 5, is stated, in practically the same terms, by the court's No. 5.

It will be observed that there was a tender before the action was instituted and afterwards a deposit in court of $ 100, and that the verdict and judgment were for $ 87.30. Plaintiffs claim that the judgment should have been for at least the amount thus tendered and deposited. The sum tendered and deposited in court is for the plaintiffs, and may be taken by them at any time. Its tender and payment into court for the plaintiffs was, for all practical purposes, a payment to them (Knollenberg v. Nixon, 171 Mo. 445, 455, 72 S.W. 41), and though the verdict was for a less sum, the defendants cannot claim back the overplus. [Johnson v. Garlichs, 63 Mo.App. 578, 584; Voss v. McGuire, 26 Mo.App. 452; Griffith v. Jackson, 45 Mo.App. 165, 168; Transfer Co. v. Neiswanger, 27 Mo.App. 356; Crawford v. Armstrong, 58 Mo.App. 214, 218.]

It follows that the true practice is, that where there is a tender and deposit in court, the money being deemed to have been paid to the party to whom the tender is made, he should not have a judgment for any sum unless more than that is found to be due him. We so stated in Johnson v. Garlichs, supra, and the same is repeatedly stated in 1 Tidd's Practice, 619, 624, 627. Formerly, the defendant obtained a rule which permitted him to pay into court what he considered to be due, and whereby it was directed that unless the plaintiff accepted it, it should be struck out of the declaration and paid to the plaintiff or his attorney and that the plaintiff should not be permitted to give evidence of it. [1 Tidd's Prac. 619 (side page).] In such case "the action proceeds for the residue of the demand, in like manner as if it had been originally commenced for that only." Ib. 624. "In such case if the plaintiff proceed to trial, otherwise than for non-payment of costs, and do not prove more to be due him than the sum brought in, the plaintiff, on the rule being produced, shall be non-suited, or have a verdict against him, and pay costs to the defendant; and even though the rule be not produced the plaintiff, it seems, cannot take a verdict for the sum brought into court. But if more appear to be due him, he shall have a verdict for the overplus and costs." [Ib 627.] The same thing is stated by...