Wayne Tank & Pump Co. v. Evans

• Decision Date: 01 April 1929
• Docket Number: No. 16523.,16523.
• Citation: 15 S.W.2d 895
• Court: Missouri Court of Appeals
• Parties: WAYNE TANK & PUMP CO. v. EVANS.

15 S.W.2d 895

WAYNE TANK & PUMP CO. v. EVANS.

No. 16523.

Kansas City Court of Appeals. Missouri.

April 1, 1929.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by the Wayne Tank & Pump Company against O. M. Evans, in which defendant filed a counterclaim. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

McClintock, Quant & Ferguson, of Kansas City, for appellant.

Mosman, Rogers & Buzard, of Kansas City, for respondent.

BLAND, J.

This action, originating in the justice court, is to recover the unpaid balance of $135.00 together with interest and attorney's fees, upon the purchase price of a water softener. Defendant filed a counterclaim alleging that he had paid plaintiff the sum of $240.00 upon the purchase price of the softener; that the softener had been misrepresented to the defendant and that the same had failed to properly function and was wholly worthless. There was another item covered in the counterclaim which is immaterial to this appeal and therefore unnecessary to mention. However, judgment was prayed in an amount sufficient to cover the $240.00 paid by defendant.

Plaintiff filed a reply in the justice court to defendant's counterclaim, pleading provisions of the warranty contained in the written contract upon which the machine was sold, with reference to the return of the defective parts of the machine to the plaintiff at Fort Wayne, Indiana, transportation charges prepaid, and plaintiff pleaded that the defendant failed to return the machine to the plaintiff and had thereby failed to comply with the provision of the contract and warranty and was barred and estopped from urging the matter set forth in the counterclaim.

There was a trial in the circuit court before a jury resulting in a verdict and judgment in favor of defendant on plaintiff's cause of action and for the defendant on his counterclaim in the sum of $240.00. Plaintiff has appealed.

The facts show that the water softener was purchased from plaintiff by defendant on March 15th, 1923, and shortly thereafter was installed by plaintiff in defendant's house in Kansas City. It consisted of an iron tank about two feet in diameter and six feet high, filled with a mineral substance, having the appearance of quicksand. This substance operated chemically on the city water passing through the softener and softened the water. The softener was so constructed as to require reconditioning about once a week in the winter time and about every two weeks in the summer time. This reconditioning was required for the reason that after the softener operated for those periods of time the water became hard unless the softener was reconditioned. The process of reconditioning was as follows: The flow of water was reversed so that it would come up through the bottom of the tank and through valves on top; this washed out the dirt and sediment from the softener; after the mineral in the softener had thus been cleaned by this back washing process sixteen pounds of common barrel salt was placed in the softener and it was closed up and the city water turned on in the regular manner through the house water piping. When the salt became washed out the water coming through the softener was then soft and remained so until it became necessary to again recondition the softener.

The sole complaint of the defendant was that for three or four days after the softener had been reconditioned the water drawn through the faucets in the house ran a reddish color. However, after that time until it was again reconditioned the water would be clear. Defendant's evidence does not tend to prove to what extent the reddish discoloration of the water affected the use of the water. It does not appear whether the discoloration made the water unsanitary or that it materially interfered with its use, though no doubt there would be a natural aversion to drinking discolored water. The particular defect in the softener causing the discolored water is not shown in the evidence.

The contract provided that the plaintiff guaranteed for one year from its date the equipment to be free from defective material and workmanship, and that should any "parts" of the water softener prove defective defendant should return such "parts" to plaintiff at Fort Wayne, Indiana, transportation charges prepaid, for its inspection and replacement. However, it appears that defendant did not stand upon this provision of the contract, for the evidence shows that shortly after the softener had been installed it began to give forth red water and the matter was immediately taken up by defendant with plaintiff's factory branch manager in Kansas City and that service men were sent by plaintiff to defendant's house to inspect the appliance. Defendant testified:

"Numerous ones were there and came there, oh, I don't know how many times, I suppose a hundred times. For two years they were at my house and back again. They used thousands of gallons of water and everlastingly had salt running out through this. I paid my payments as they came due until I paid around $240. Then I refused to pay any more until they would make the thing work satisfactorily. They had one man by the name of Hoppe (an engineer) * * * he always told me the thing wasn't right but the Wayne Tank & Pump Company would make it right."

Defendant further testified that after the softener had been in for about a year plaintiff sent an inspector who told the witness that the reason the softener did not work properly was because defendant "wasn't getting enough water." Defendant suggested that he would put in a main that would give more water and the inspector told him that if he did so the softener would work. Defendant spent $120.00 to $130.00 in putting in a two-inch water pipe and the city put in a new meter at a cost to defendant of $40.00. The mineral was then washed out of the softener and new put in, but the softener worked as it had before. Defendant continued to make complaints to the Kansas City office from time to time and on July 20th, 1924, wrote plaintiff at its head office at Fort Wayne, Indiana, a letter, complaining that the softener did not properly work. Each time defendant would complain some one would be sent to his home and recondition the softener; but this did no good. Plaintiff's agents told him "let it (the softener) alone." Defendant testified that one Stephens, who was the Kansas City manager of the plaintiff was "there time after time and each time he would tell me it wasn't working right"; that the engineer Hoppe, was there "and numerous others"; that defendant "finally refused to pay them any more money until they made it good. It ran over a period of three or four years anyway."

The evidence shows that the purchase price of the softener was $375.00 to be paid in monthly payments and that defendant paid in all the sum of $240.00 on the price; that these payments were made between April 10th and October 13th, 1923. We assume that it was after the payment made on the latter day that defendant refused to make any more payments until plaintiff should make the softener work properly.

The evidence shows that finally plaintiff sent out one Dunn to attempt to remedy the trouble in the softener; that Dunn was there on March 10th, 1926.

Defendant testified that Dunn:

"Came out to my house and said he was sent out there to make the thing right, and I told him I was sick and tired of it, and a number of times I told them to take it out, I was tired of fooling with it. This new man (Dunn) came out and told me that it wasn't right, that I should not get red water, and they always found the red water when they came, and they made various excuses for that. One was that it way (was) my hot water tank, and I put in a new hot water tank. It didn't do any good. Since that time I have put in a Ruud heater, the best I can buy, and I still get the red water through the Ruud heater, with copper pipes. But this man (Dunn) told me that he was going to make it good and asked me to let him have access to the basement, where the softener was, and he would put it in first class condition. I told him all right, he could get in anytime he wanted, all I asked him was to come out at a time when we would be at home or my wife could be at home. I never heard another word from him. He went away and never came back, and the next thing I heard was that they were going to start suit.

There were no instructions requested by the defendant, and the only instruction given was by the court of its own motion on the form of the verdict. However, the plaintiff requested, but the court refused two instructions, one of which sought to instruct the jury that they should find for the plaintiff in the sum of $135.00 and interest, and the other was a peremptory instruction to find against the defendant on his...