Southern Iron & Equipment Co. v. Smith
| Citation | 165 S.W. 804,257 Mo. 226 |
| Parties | SOUTHERN IRON & EQUIPMENT COMPANY v. LUCIUS J. SMITH, Appellant |
| Decision Date | 02 April 1914 |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.
Reversed and remanded.
John A Eaton, Dudley W. Eaton, Edmund H. McVey and Hyden J. Eaton for appellant.
(1) The contract is one of bailment for mutual benefit. (a) It contained a warranty or agreement that the engines were fit and suitable for use in construction service in Arkansas and Louisiana. (b) It contained an express agreement or warranty that the engines had been overhauled and were in first-class operative condition. (c) Under the contract the engines were intended for the specific purpose of operation and use in construction work in Arkansas and Louisiana. This intended use was understood by the parties. The contract expresses the warranty of suitability which the law would imply were the contract silent upon that subject. (d) The trial court erred in each of the instructions given to the effect that the condition of the engines was to be determined at the point of delivery, not at the point where they were to be used. (e) The trial court erred in eliminating from defendant's instructions the words "and were suitable for," and in giving the instructions so modified, thus eliminating from the instructions the issue of the suitability of the engines for the use for which they were hired. (f) The appellant was entitled to try and test the engines at the point of use as named in the contract and thus determine whether they were suitable and fit for the purposes for which they were hired. Bass v. Cantor, 24 N.W. 147 (Ind.) ; 6 Cyc. 179; Conn v. Hunsberger, 73 A. 324; Baker & Lockwood Mfg. Co. v. Clayton, 90 S.W. 519; The Nimrod, 141 F 215; Leavitt v. Fibreloid Co., 196 Mass. 440, 15 L.R.A. (N.S.) 855; Skinner v. Glass Co., 103 Mo.App 650; Nichols & Shepard Co. v. Bryeans, 116 Mo.App. 693; Implement Co. v. Parmer, 128 Mo.App. 300; Mark v. Cooperage Co., 204 Mo. 242; Moore v. Koger, 113 Mo.App. 423; Tufts v. Verkuyl, 124 Mich. 242; Compressed Air Co. v. Fulton, 148 S.W. 422; Eckard v. Transit Co., 190 Mo. 193; Gibler v. Railroad, 129 Mo.App. 93; Jenkins v. Clopton, 141 Mo.App. 74; McQuillan on Instructions to Juries, sec. 118. (2) Respondent was not entitled to recover for the engines while they were being repaired pursuant to the St. Louis agreement, and was not entitled to recover the contract price for any use made of the engines after the St. Louis agreement. (3) A large part of respondent's evidence in chief consisted of mere conclusions and opinions of the witnesses which were not competent and should have been excluded. Spaulding v. Edina, 122 Mo.App. 69; Dammann v. St. Louis, 152 Mo. 199; McMahon v. Dubuque, 77 N.W. 518; Atherton v. Bancroft, 72 N.W. 209; Topeka v. Sherwood, 39 Kan. 690. (4) The instruction given at the request of plaintiff on the second count was erroneous and inconsistent with Instruction number 9 given at the request of the appellant. Gardner v. Met. St. Ry., 223 Mo. 389; Kelly v. United Railways, 153 Mo.App. 114; Stid v. Railroad, 236 Mo. 382; Bowan v. Epperson, 136 Mo.App. 571; McQuillan on Instructions to Juries, sec. 156; State v. Harrell, 97 Mo. 105; Redpath v. Lawrence, 42 Mo.App. 101; Bluedorn v. Railroad, 108 Mo. 439; Frank v. Railroad, 57 Mo.App. 181; Oil Co. v. Drug Co., 74 Mo.App. 446; Shoe Co. v. Sheperd, 96 Mo.App. 698; Vermillion v. Parsons, 118 Mo.App. 260; Hurst v. Railroad, 117 Mo.App. 25. (5) The appellant was entitled to read all of the cross-examination of the witness Leonodis Shannon and was entitled to read the portion of such cross-examination which respondent withdrew and declined to read. State ex rel. v. Gans, 72 Mo.App. 640; Watson v. Race, 46 Mo.App. 552; Johnson v. Blell, 61 Mo.App. 37; Green v. Chickering, 10 Mo. 109; McClintock v. Curd, 32 Mo. 411. (6) The petition sought to recover rental upon the engines after the termination of the original agreement under an allegation that such original agreement was extended according to its terms. The proof showed that appellant did not retain the engines under said contract but under another agreement or arrangement made at St. Louis after the expiration of the four months' term mentioned in the original agreement. Respondent was not entitled therefore under the petition to recover any rental on the engines after the expiration of said four months period. Chambers v. Hotel Co., 154 Mo.App. 249; Canaday v. United Railways, 134 Mo.App. 282; Adams v. Railroad, 149 Mo.App. 278; Bank v. Romine, 154 Mo.App. 624; Henry County v. Bank, 208 Mo. 209; Henry County v. Bank, 208 Mo. 238; Haynor v. L., P., H. & W. Co., 129 Mo.App. 691. (7) The evidence showed that appellant paid the freight upon the engines from Atlanta to Simms, that he expended sums of money in repairing the engines and in attempting to operate them and to put them in condition to do his work, and after finding they were unsuitable employed a watchman to look after the engines, whose compensation appellant paid. The trial court erred in its charge to the jury upon appellant's counter-claim to recover these expenditures. Neil v. Store Co., 149 Mo.App. 53; Morrow v. Railroad, 140 Mo.App. 200. (8) The trial court erred in withdrawing from the jury appellant's counter-claim. Stewart v. Patton, 65 Mo.App. 21; Gildersleeve v. Overstolz, 90 Mo.App. 518; Mark v. Cooperage Co., 204 Mo. 242; Conn v. Hunsberger, 73 A. 324; The Nimrod, 141 F. 215; 13 Cyc. 33.
White, Thornton & Holloman, Robert O. McLin and T. W. Holloman for respondent.
(1) The instructions fully covered all the warranties of the contract. The question of suitability, or fitness, was not raised at the trial by the pleadings and the evidence, or either of them, except on the question of the condition of locomotives as to whether they complied with the contract, as to having been overhauled, and being in first-class operative condition for use in construction service in Arkansas and Louisiana, and the instructions were properly confined to the issues presented by the pleadings and the evidence. Black v. Met. St. Ry., 217 Mo. 683; Mark v. Cooperage Co., 204 Mo. 262; Waddingham v. Hulett, 92 Mo 528; Duke v. Railroad, 99 Mo. 351; Barr v. Kansas City, 105 Mo. 559; Sinnamon v. Moore, 142 S.W. (Mo. App.) 497. (2) The trial court did not eliminate from the appellant's instructions numbers 5 and 6, as asked, the issue of suitability, or withdraw any defense, by eliminating from appellant's instructions 5 and 6 the words "and were not suitable," for the reason that such instructions, as asked, did not present any such issue or defense, separate and apart from the question of first-class operative condition for use in construction service in Arkansas and Louisiana. And by striking out the words "and were not suitable" the court relieved appellant of a burden he voluntarily attempted to assume, that the law did not cast upon him under the pleadings and the evidence; the instructions given being more favorable to appellant than those asked. McHugh v. Transit Co., 190 Mo. 96. (3) And even if appellant was correct in his contention as to an implied warranty, instructions 5 and 6 as asked were fatally defective, in leaving out the word "reasonably" before the word "suitable." Seitz v. Machine Co., 141 U.S. 518; Mark v. Cooperage Co., 204 Mo. 264; Smith v. Brunswick, 61 Mo.App. 580; The Nimrod, 141 F. 216; Skinner v. Glass Co., 103 Mo.App. 659; Brewing Assn. v. McEnroe, 80 Mo.App. 431; Armstrong, Gilbert & Co. v. Tobacco Co., 41 Mo.App. 258; Bridge Co. v. Hamilton, 110 U.S. 116; 5 Cyc. 179. (4) The trial court in no way denied the appellant's right to try and test the locomotives at Simms, Louisiana, or at any other place, and the court allowed the appellant to give to the jury all of the evidence he offered pertaining to the condition or uses of the locomotives, without any restriction whatever, as to the time or place of such trial or test, covering the entire period of time that the engines were in appellant's possession; and the trial court correctly instructed the jury that, in determining whether the locomotives in question were overhauled and in first-class operative condition, they must determine from the evidence what was their condition at the time and place they were delivered to the appellant by respondent. Blooms' Son Co. v. Haas, 130 Mo.App. 122; State v. Rosenberger, 212 Mo. 648; State v. Wingfield, 115 Mo. 428; Comstock v. Affoelter, 50 Mo. 411; Gill v. Comm. Co., 84 Mo.App. 460; Scharf v. Meyer, 133 Mo. 428; Gardner v. Met. St. Ry., 223 Mo. 413. (5) No implied warranty that a machine or other article is suitable or reasonably suitable to accomplish a particular purpose or to do a specific work arises, where a bailee leases a specific, described or definite machine or other article, although the bailor knows the particular purpose or work which the bailee intends to accomplish with it. The extent of the implied warranty in such a case is that the machine or other article shall correspond with the description and shall perform the ordinary work which the described machine or other article is made to do. And the more is this the case where the specific machine itself was selected, as in the case at bar. Seitz v. Refrigerating Co., 141 U.S. 518; Mark v. Cooperage Co., 204 Mo. 264; Drill Co. v. Mallory, 137 F. 334; Hotel Co. v. Wharton, 24 C. C. A. 443, 79 F. 45; Selling Co. v. Jones, 128 F. 677, 63 C. C. A. 229; Boiler Co. v. Duncan, 87 Wis. 124; Fairbanks, Morse & Co. v. Baskett, 98 Mo.App. 69; Jones v. Just, L. R. 3 Q. B. 197; Car Co. v. Met. St. Ry., 157 U.S. 108; Schouler, Law of Bailments (2 Ed.), par. 93, p. 106. (6) No implied warranty even of reasonable suitability exists as to second-hand locomotives. Morris v. Reinstedler, ...
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