Sinnamon v. Moore

• Decision Date: 08 January 1912
• Parties: SINNAMON v. MOORE.
• Court: Missouri Court of Appeals

142 S.W. 494

161 Mo. App. 168

SINNAMON v. MOORE.

Springfield Court of Appeals. Missouri.

January 8, 1912.

1. TRIAL (§ 143) — JURY QUESTIONS — CONFLICTING EVIDENCE.

A counterclaim is properly submitted to the jury, where the evidence thereon is conflicting.

2. SALES (§ 429)—COUNTERCLAIM BY BUYER —CONDITIONS PRECEDENT.

Where the buyer of a horse counterclaimed for money paid and expenditures, on the theory of breach of warranty that the horse was sound, instructions, authorizing recovery by the buyer without any tender of the horse or rescission of the sale, were properly refused.

3. SALES (§ 429)—BREACH OF WARRANTY— OFFER TO RETURN PROPERTY—NECESSITY.

The buyer of a horse cannot recover on the theory that, though it was warranted to be sound, it was worthless, without offering to return the horse within a reasonable time after discovering its defects or disease.

4. SALES (§ 268) — DEFECTS — LIABILITY OF SELLER.

If defects in a horse complained of by a buyer could have been ascertained by a reasonable examination, no recovery can be had on account thereof, unless there was an express warranty against the defects.

5. SALES (§ 260)—COUNTERCLAIM BY BUYER —WARRANTY—KNOWLEDGE OF SELLER.

Where the buyer of a horse counterclaimed for defects, it was error to refuse to instruct that it was not necessary for defendant to prove that plaintiff knew the horse was unsound at the time of the sale, but it was sufficient to show that it was represented to be but was not sound, and a good worker, if defendant relied on such representations, etc.

6. SALES (§ 120) — RESCISSION BY BUYER — BREACH OF WARRANTY.

A buyer under an executed contract of sale can rescind for breach of warranty, though there was no fraud.

7. TRIAL (§ 233)—INSTRUCTIONS—REFERRING JURY TO PLEADINGS.

An instruction, which refers the jury to the pleadings to ascertain matters stated therein, is improper; it being the trial judge's duty to instruct as to what issues are raised.

8. SALES (§ 428)—BREACH OF WARRANTY— RIGHTS OF BUYER.

Under a sale with warranty, retention by the buyer of the property affirms the sale, and,

if it is not wholly worthless, failure of consideration is available to defeat recovery by the seller only as to the difference between the represented and the real value of the property.

9. SALES (§ 124) — RESCISSION — OFFER TO RETURN—NECESSITY.

Where a buyer rescinds for breach of warranty and seeks recovery of the price, the property must have been returned or tendered to the seller within a reasonable time, unless it is worthless; but it is not sufficient that it is worthless for the particular purpose for which it was sold.

10. TRIAL (§ 203)—DUTY TO INSTRUCT.

Under Rev. St. 1909, § 1987, the trial court need not prepare instructions in a civil case; but it may do so, and, if it does, it must instruct on all the issues.

11. SALES (§ 284)—BREACH OF WARRANTY— DAMAGES.

In an action on a note given for the price of a horse wherein defendant counterclaimed for breach of warranty of soundness, he could not recover for barrenness not resulting from disease.

12. TRIAL (§ 251)—INSTRUCTIONS—CONFORMITY TO ISSUES.

Instructions must not change the issues as made by the pleadings.

13. TRIAL (§ 252)—INSTRUCTIONS—CONFORMITY TO EVIDENCE.

An instruction on a question not presented by the evidence is improper.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by W. E. Sinnamon against A. T. Moore. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. P. McCammon, for appellant. Wm. A. Rathbun, for respondent.

NIXON, P. J.

This action was commenced in a justice's court, wherein defendant prevailed and plaintiff appealed. On trial in the circuit court, the plaintiff obtained judgment, whereupon the defendant appealed. The suit was upon a promissory note executed by the defendant to the plaintiff for the sum of $80, the balance of the purchase price of a certain mare sold by the plaintiff to the defendant; the price being $100, of which the defendant paid $20 at the time of the purchase. The defense was that at the time of the sale of the mare the plaintiff represented and warranted her to be bred and absolutely sound, that the warranties were believed by the defendant and relied upon, and that the mare was thereupon delivered to and received by the defendant as an executed sale. The defendant filed a counterclaim, alleging that the mare at the time of the sale had a disease commonly known as the heaves to such an extent as to be worthless for work and required great care and attention; that she became so affected with said disease that she was barren and utterly worthless for breeding purposes; that, soon after defendant learned that she was diseased with the heaves and worthless for work, he tendered her to the plaintiff and rescinded the sale; that by reason of the diseased condition of the mare she was worthless for any purpose; that the defendant had expended for medicine and feed the sum of $83.50; that he paid $20 cash at the time of the purchase, making a total outlay of $123.50, for which he prayed judgment.

The case was tried in the circuit court upon the theory that the defendant had tendered the mare to the plaintiff and rescinded the sale. The evidence of the defendant tended to support the material allegations of his counterclaim. The evidence of the plaintiff tended to contradict the material allegations of the appellant's counterclaim. The matter was properly a question to be submitted to the jury.

The defendant asked, and the court refused to give, among others, the following instructions:

"(1) The court instructs the jury that if you believe from the evidence that the plaintiff, at the time of the sale of the mare for which the note was given, represented that the said mare was sound, and that defendant's agent relied on said representation, and if you further believe from the evidence that the said mare was not sound but had the heaves, then your verdict must be for the defendant.

"(2) If you find from the evidence that the mare in question was represented by the plaintiff at the time of the sale to be sound, and that the defendant's agent relied on such representation, and if you further find from the evidence that the said mare was of no value, then your verdict must be for the defendant for the amount of cash paid at the time, with interest thereon from date of tender of mare back, plus such amounts as defendant paid for medicine, and plus the reasonable value of defendant's services in taking care of and feeding said mare up to December 20, 1910."

"(5) If the jury find from the evidence that the mare in question was represented and sold to defendant as sound and a good worker, which representations were relied on by defendant, when in fact she was not sound or from any cause could not bring a foal or be gotten in foal, or from any cause she was incapable of doing good work and was worthless, then your verdict must be for the defendant."

These instructions were properly refused. They allow a recovery without any tender of the mare or rescission of the sale, and without an offer, in such a case, to return the mare in a reasonable time after the party has discovered that she is defective or diseased, there can be no recovery. Manley v. Crescent Novelty Mfg. Co., 103 Mo. App. 135, 77 S. W. 489; Hart v. Handlin, 43 Mo. 171; Viertel v. Smith, 55 Mo. App. 617.

The defendant also asked, and the court refused to give, the following instruction: "(4) If...