Shultis v. Rice
| Decision Date | 17 October 1905 |
| Citation | 89 S.W. 357,114 Mo.App. 274 |
| Parties | SHULTIS, Respondent, v. RICE, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. Houston W. Johnson, Judge.
AFFIRMED.
Judgment affirmed.
A. C Whitson for appellant.
The court erred in giving plaintiff's instruction No. 2 instructing the jury that if they found for the plaintiff to allow him the value of the property alleged in his petition as sold by defendant to him, which did not belong to defendant, and the costs of the suit paid by plaintiff together with the attorney fee in defense of the title to said property. The measure of damages for breach of a warranty of title to either real or personal property is universally held to be the purchase money paid with interest to which may be added any expense necessarily paid in defense of a failing title, as by purchase of outstanding liens, not to exceed the amount of the purchase price. Dryden v Kellogg, 2 Mo.App. 93; Ranney v. Musenherner, 61 Mo.App. 434; Schell v. Stephens, 50 Mo. 375; Matheny v. Mason, 73 Mo. 677; Robinson v. Rice, 20 Mo. 299; Joyce on Dam., 1715; Barton v. Faherty, 3 Greene (Iowa) 327.
Fry & Rodgers for respondent.
The instructions properly declared the measure of damage. Johnson v. Meyer's Ex., 34 Mo. 256; Coleman v. Clark, 80 Mo.App. 343; Hoffman v. Chamberlain, 53 Am. Rep. 788; Blasdale v. Babcock, 1 John 517; Narr v. Normann, 88 S.W. 122; Chalice v. Witte, 81 Mo.App. 86; Rowse v. Johnson, 66 Mo.App. 63; Harrison v. Hall, 97 Mo. 394.
In August, 1902, defendant Rice was conducting a hardware store in the town of Cambridge, Iowa. During that month he sold to plaintiff Shultis his stock of hardware and the furniture in the store where it was kept, consisting of shelving, counters, stepladder, showcase, lamps, a stove and perhaps other articles. No price was fixed on the different articles, which were sold for the round sum of $ 400. The building belonged to S. A. Rush, who subsequently, on Shultis attempting to move the stock and furniture to another room in the same town, asserted title to the shelving and a stepladder. Shultis having retained possession of the property against Rush's claim, the latter sued him in an Iowa court for a wrongful conversion, demanding the value of the property converted and damages for injury to the building in removing the shelving. The latter circumstance renders it impossible, from the meager excerpt of the record in the Iowa case contained in the present record, to say how much of the damages allowed Rush in that case was assessed as the value of his property which Shultis had converted, and how much was assessed for damages to the building. Shultis notified Rice of the pendency of the action and requested the latter to defend the title he had conveyed, which Rice failed to do. The action resulted in a judgment against Shultis in favor of Rush for $ 122. In addition Shultis paid $ 37 for an attorney's fee in the case and other expenses, such as the cost of taking depositions. The present action is on the defendant's warranty of title to the fixtures sold and was instituted to recover from Rice the loss sustained by Shultis on account of the failure of the title. Prior to the sale to Shultis, Rice had purchased the stock of hardware and certain store furniture from J. M. Bartlett, and swore that he only undertook to sell to Shultis such store furniture or fixtures as he had acquired from Bartlett. But Shultis said that during the negotiations between him and Rice the latter went around the storeroom and, laying his hand on each piece of the furniture, said: "This goes in." Rice's present contention conflicts with what he testified in the case of Rush v. Shultis; for he then swore the counter and shelving were included in his sale. There was a bill of sale from Rice to Shultis which was deposited with F. W. Larson, the cashier of the bank in Cambridge, for the use of either party who might desire to see it. The point is much pressed on the present appeal that as that instrument was the sole evidence of the contract regarding the fixtures sold, parol evidence was improperly admitted to show what was sold. The evidence conclusively shows the bill of sale had been lost while in Larson's possession and secondary evidence of its contents was admissible.
The only point suggested against the validity of the judgment which we consider worthy of discussion is the measure of damages. There appears to be no question raised in regard to plaintiff's right to recover the expense he was put to in defending the Rush case. The testimony shows plaintiff called on his warrantor Rice to make the defense, and the latter did nothing except maintain by deposition, Shultis' right to the property claimed by Rush. Under the circumstances it was proper for Shultis to defend against Rush's claim, and there is no contention that the outlay he incurred in making the defense was unreasonable. Rice is answerable as implied warrantor of the title to the chattels he sold, for a fair price, while in his possession. [Robinson v. Rice, 20 Mo. 229; Ranney v. Meisenheimer, 61 Mo.App. 434.] The usual statement of the rule is that an implied warranty of title arises on the sale of a chattel for full value; but we understand "full value" to mean there must be no such inadequacy of price as would warn a prudent buyer that the seller's acceptance of it was suspicious; not that the exact value must be paid. This case is not complicated by an averment of fraud on the part of Rice in knowingly making false and fraudulent representations regarding his ownership of the fixtures. As a simple action for breach of the implied warranty of title, the question for decision is, what is the measure of damages? At the instance of the plaintiff the trial court instructed the jury to allow the plaintiff, if they found the issues in his favor, the value of the shelving and stepladder, not to exceed $ 122 and to allow, besides, the reasonable expenses plaintiff incurred in defending the Iowa case. This meant plaintiff was entitled to recover the value of the property, not to exceed the amount of the Rush judgment which he had paid; namely, $ 122. No doubt that sum represented his maximum loss; and there is authority for the proposition that if we knew it was found by the jury as the value of the property, Rice would be bound by the judgment in this action, he having been notified to defend the case. [Blasdale v. Babcock, 1 Johns. 517; Thurston v. Spratt, 52 Me. 202.] But, as said above, we cannot be sure what the Iowa jury found the value of the property to be, for the reason that a portion of the sum awarded by the verdict in favor of Rush may have been for injury done to his building in removing the shelving. Therefore, the amount which plaintiff is entitled to recover against the defendant for the shelving and ladder rests on facts in pais; and so the court below and the parties treated the matter at the trial. The position taken by the defendant is that the court erred in charging the jury to allow the plaintiff the value of the property, not to exceed the amount of the Iowa judgment, instead of charging them to allow its price, not to exceed said judgment. The purpose which pervades the law of damages for the breach of a contract is to make full compensation to the aggrieved party for all losses sustained as the proximate result of the breach. [Hammond v. Beeson, 112 Mo. 190, 20 S.W. 474.] Any damage naturally arising from the breach is recoverable without being specially pleaded, but such as depend upon particular circumstances must be pleaded. These principles are applied in actions for breach of warranties in contracts for the sale of chattels. [Armstrong v. Percy, 5 Wend. 535.] If the vendor of a chattel fails to deliver it according to agreement, the vendee may recover in an action on the contract, the chattel's value even if it exceed the price. [White v. Salisbury, 33 Mo. 150.] That is to say, he is entitled to the profit of his deal. And, in an action on a warranty of the quality of the article sold, the measure of damages is not limited by the price paid, but is the difference between what the article was worth in its actual condition when delivered to the buyer, and what it would have been worth if of the quality and condition warranted. [Walls v. Gates, 4 Mo.App. 1.] These rules apply in actions for breach of warranty; but an aggrieved buyer, if he likes, may rescind the sale and sue for the price instead of suing on the warranty. [Wilkinson v. Ferree, 24 Pa. 190; Kimball v. Cunningham, 4 Mass. 502.] When the grievance alleged is, as in the present case, neither failure to deliver the article nor defective quality, but failure of title to an article sold and delivered, the rule of damages commonly, but not universally announced is, that the buyer may recover the purchase money; thus likening an action on a warranty of title to a chattel to one on a warranty of title to land. And some courts explicitly say the same measure obtains whether the thing sold was realty or personalty. ...
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