Spruce Co. v. Mays

• Decision Date: 12 August 1933
• Docket Number: No. 30032.,30032.
• Citation: 62 S.W.2d 824
• Parties: SPRUCE COMPANY v. ED MAYS, Doing Business as THE MAYS MANUFACTURING COMPANY, Appellant.
• Court: Missouri Supreme Court

62 S.W.2d 824

SPRUCE COMPANY v. ED MAYS, Doing Business as THE MAYS MANUFACTURING COMPANY, Appellant.

No. 30032.

Supreme Court of Missouri, Division Two.

August 12, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Rosskopf, Judge.

AFFIRMED.

Curlee, Nortoni & Teasdale for appellant.

(1) The negotiations detailed by Mr. Hardie and Mr. Mays which took place in Mr. Hardie's office September 11, 1919, together with the plaintiff's written proposition of the same date, and Mr. Mays' letter of September 13, 1919, identified by Mr. Hardie, and plaintiff's letter by Mr. Hardie of date September 17, 1919, all above copied. constituted the contract. The letter of Mr. Mays, dated September 13, 1919, with the qualification contained therein, concerning the fact that the transformers should be three phase, and also adding a condition that the shipment must be made by the "27th of this month," did not conclude the contract, because it was not an unqualified acceptance. "An absolute acceptance of a proposal, coupled with any qualification or condition, will not be regarded as a complete contract." Eads v. City of Carondelet, 42 Mo. 117; Falls Winn Mfg. Co. v. Broderick, 12 Mo. App. 383; Egger v. Nesbit, 122 Mo. 675; Canges v. Rumsey Mfg. Co., 37 Mo. App. 307; State ex rel. Equitable Life Assn. v. Roberts, 191 S.W. 991. (2) There was an express warranty as a matter of law. The plaintiff's written proposition as follows: "We propose to furnish you with 101 KVA. Westinghouse, three phase, sixty cycle, 2300 volt, 277 RPM, direct connected generator to a 13×14 Ball simple automatic engine, complete with seven KW, 125 volt. belted exciter and with switchboard and usual accessories," constitutes an express warranty that the machine is free from deficiency and perfect. Webster's New International Dictionary defines the word "complete" as follows: "Filled up; with no part, item or clement lacking; free from deficiency; entire, perfect, consummate." The courts adopt and act upon this definition. Town of Checotah v. Town of Eufaula, 31 Okla. 85, 119 S.W. 1017. (3) In order to constitute a warranty, no particular form of words is essential, and it is not necessary that the word warranty should be used. Latham v. Shipley, 86 Iowa, 545; 35 Cyc. 373, 374; Carter v. Black, 46 Mo. 384; Childs v. Emmerson, 117 Mo. App. 671; Wertheimer-Swartz Shoe Co. v. McDonald, 138 Mo. App. 328. (4) This court in this division has but recently held in Hunter v. Waterloo Gasoline Engine Co., 260 S.W. 972: "It is the general rule in the sale of goods that, if a purchaser buys of a manufacturer or dealer an article to be applied to a particular purpose, so that the purchaser necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied warranty that the article shall be reasonably fit for the purpose to which it is to be applied." As to the particular warranty that the property is reasonably fit for the purposes intended in the circumstances cited, the rule is identically the same whether the seller is a dealer or a manufacturer, as declared in the case above cited and the authorities generally. Hunter v. Waterloo Gasoline Engine Co., 260 S.W. 972; 1 Williston on Sales (2 Ed.) secs. 232, 233; 2 Benjamin on Sales, secs. 987-988; 35 Cyc. 399, Wing v. Chapman, 49 Vt. 33; Mark v. Williams Cooperage Co., 204 Mo. 265. The rule is the same under the Sales Act. K.C. Bolt Co. v. Rodd, 220 Fed. 755; The S.S. Anglo Toso, 271 Fed. 247. There is nothing on the express warranty that excludes the implied one. Boulward v. Victor Auto Mfg. Co., 152 Mo. App. 567. (a) This rule is the same as to the sale of used or secondhand personal property when it appears there has been no inspection and the buyer depends on the skill and judgment of the seller. The New Birdsell Co. v. Keys, 99 Mo. App. 458; Latham v. Shipley, 86 Iowa, 543; Williston on Sales (2 Ed.) secs. 232, 233; Marmet Coal Co. v. Peoples Coal Co., 226 Fed. 646; Hall Furniture Co. v. Crane, 41 L.R.A. 1915B, 428, 85 S.E. 35; Walker E. & C. Co. v. Ayer, 80 S.C. 292, 61 S.E. 557; Guyandotte Coal Co. v. Va. Elec. Co., 118 S.E. 512; Gary Coast Agency v. Lawry, 101 Ore. 628, 201 Pac. 214; Bonchet v. Oregon Motor Co., 78 Ore, 230, 152 Pac. 888; Varley v. Whipp, 10 B. Eng. 513; Markmam v. Hallbeck, 206 Ill. App. 465; Dushane v. Benidict, 120 U.S. 630, 30 L. Ed. 810; Buffalo Pitts Co. v. Alderdice, 177 S.W. 1044. (5) In view of plaintiff's efforts to repair and make the generator work as it should, there was no obligation on the part of defendant to return or do more than he did as to efforts to return. Such continued offers to repair and assurances on the part of plaintiff in the circumstances shown in the evidence operated a waiver as to that. Montague Compressed Air Co. v. Fulton, 166 Mo. App. 131. "Return of the goods for breach of warranty will be regarded as waived where the failure to return or the delay is caused by the conduct of the seller in requesting the buyer to retain the goods for further trial, or by a promise by the seller to remedy the defects." 35 Cyc. 440; 35 Cyc. 259; Keystone Implement Co. v. Leonard, 40 Mo. App. 482; D.M. Osborne & Co. v. Mullikin, 88 Mo. App. 350; Tall v. Chapman, 66 Mo. App. 581; J.B. Colt Co. v. Knight & Perry, 3 S.W. 879; Buss v. Window Glass Co., 146 Mo. App. 71; Bank v. Fraze, 9 Ind. App. 161. (a) Where there is any doubt as to whether or not the buyer has waived his right to reject, there is a jury question. 35 Cyc. 262; and so hold all of the authorities last above cited. (b) Plaintiff's letter of March 25, 1920, demanding payment while efforts were still pending by it to make the machine work, operated a waiver of any return or offer to return as no one is required to do a futile act. Palmer v. Reeves & Co., 139 Mo. App. 437; J.B. Colt v. Knight & Perry, 3 S.W. 879. (6) Plaintiff was fully informed of defendant's contract with the city and the necessity of having a generator to keep and perform such contract and these facts bring the counterclaim in the main within the rule of Hadley v. Baxendale, to the effect that consequential damages and the loss of profits which were reasonably within the contemplation of the parties occasioned by a breach are recoverable. Hadley v. Baxendale, 9 Exch. 343; Minneapolis Threshing Machine Co. v. Bradford, 206 Mo. App. 609; Weber Implement Co. v. Acme Harvesting Machine Co., 268 Mo. 372; Mark v. Williams Cooperage Co., 204 Mo. 265; Chalic v. Witte, 81 Mo. App. 92; Martin v. Lumber Co., 167 Mo. App. 381; Sloan v. Parramore, 181 Mo. App. 611; McGinnis v. Hardgrove, 163 Mo. App. 20; Morrow v. Railway Co., 140 Mo. App. 200; Gildersleeve v. Oberstolze, 91 Mo. App. 518; Gardner v. Gas & Electric Co., 154 Mo. App. 656; Gray v. Wabash Ry. Co., 227 S.W. 64; Gourley v. Lumber Co., 185 Mo. App. 360; 17 C.J. pp. 748-9; 8 R.C.L. pp. 506-7; 3 Sutherland Code Pl., sec. 4651; 32 A.L.R. 148. (a) It is not necessary that the seller shall agree to compensate such loss of profits, but is sufficient if such consequential damages should be reasonably within the contemplation of the parties as a result of a breach. See authorities, supra. (7) Where a fact itself is relevant (cancellation of defendant's franchise) evidence of surrounding circumstances are admissible as well as declarations and statements to prove the reason, intent or cause prompting the act. Legett v. Exposition Co., 157 Mo. App. 108; Bennett v. Standard Accident Ins. Co., 264 S.W. 27; 3 Wigmore Evidence (2 Ed.) sec. 1729. (8) Absent elements involving exemplary damages, reference in argument or through the introduction of evidence as to the financial status of the parties is error. Smith v. St. L., etc., Ry. Co., 31 S.W. (2d) 105; Norris v. Railway Co., 239 Mo. App. 695; Nichols & Shepherd Co. v. Metzger, 43 Mo. App. 607; Bishop v. Hunt, 24 Mo. App. 373. (9) Stokes' admission that the shaft was bent should have been admitted in evidence — statements of an agent made in relation to the business being transacted at the time and in regard to which he is authorized to act, if said or done while the transaction is passing, are admissible against the principal. Roth v. Continental Wire Co., 94 Mo. App. 236; Royle Mining Co. v. F. & C. Co., 161 Mo. App. 185; H.A. Johnson & Co. v. Springfield, etc., Co., 143 Mo. App. 441; 22 C.J. 367. (10) The giving of misleading, contradictory and confusing instructions is reversible error. Schimmelpfenning v. Wells, 24 S.W. (2d) 154; Gardner v. Railway, 223 Mo. 389; Field v. Holman, 286 S.W. 133; Kessler v. Western Mo. Power Co., 221 Mo. App. 644.

Marion C. Early and Ivon Lodge for respondent.

(1) Appellant's contention urged under point two, that the written proposal of sale contained an express warranty, was not drawn to the attention of the trial court. It therefore, cannot be considered on appeal. The word "complete" in the proposal of sale does not constitute an express warranty of fitness for purpose. Colchord Machinery Co. v. Loy-Wilson Foundry Co., 131 Mo. App. 540; McGraw v. Fletcher, 35 Mich. 104. (2) An express warranty necessarily excludes an implied warranty on the same or a closely related subject. Advance Rumely Thresher Co. v. Hardware Co., 206 S.W. 588; 35 Cyc. 392; Alvin Fruit and Truck Co. v. Hartman, 146 Mo. App. 168; International Pavement Co. v. Smith, 17 Mo. 264; Little v. Widener, 32 S.W. (2d) 116. (a) The instruction which appellant asked the court to give on implied warranty was improper and erroneous, because it assumed that under the evidence it was for the jury to decide if defendant accepted the generator or retained it beyond such time as was reasonably employed in efforts to cause it to run properly. There was no evidence to support such a proposition; in fact, defendant's own testimony negatives it. "Mr. Teasdale (Q): After this period of a few months, did you do anything more with it; attempt to sell it, keep it, or buy it, or give it back? A. No." (b) This was not...