Zumbrunn v. Royal Typewriter Co.

• Decision Date: 11 June 1923
• Docket Number: Do. 14763.
• Citation: 253 S.W. 59
• Parties: ZUMBRUNN v. ROYAL TYPEWRITER CO.
• Court: Missouri Court of Appeals

253 S.W. 59

ZUMBRUNN v. ROYAL TYPEWRITER CO.

Do. 14763.

Kansas City Court of Appeals. Missouri.

June 11, 1923.

Appeal from Circuit Court, Jackson C.ninty; James H. Austin, Judge:

"Not to be officially published."

Action by W. F. Zumbrunn against the Royal Typewriter Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Clif Langsdale, of Kansas City, for appellant.

D. C. Meyer and W. F. Zumbrunn, both of Kansas City, for respondent.

TRIMBIA, P. J.

This is an action by the deuce purchaser of a typewriter to recover the sum of $100 paid therefor, on the ground of a breach of an implied warranty that the machine was fit for the purpose for which it was bought. The case originated in the jurisdiction court, and defendant filed an answer in the shape of a general denial, together with a counterclaim for $7.50 for repair work done thereon. From the justice's court an appeal was taken to the circuit court, where it was tried before the court without a jury. No instructions were asked or given, and the court, sitting as a jury, found for plaintiff, on his petition, in the sum of $22.00 and for plaintiff on defendant's counterclaim. Defendant has appealed.

The evidence is that the machine was purchased or traded for some time in the month of July, 1916 (presumably July 27th); that while from the first the machine had a "hard touch".—that is, the keys were difficult to operate—yet it was thought that was merely because the machine was "new and stiff" and this would wear away In a reasonable time, and the inefficiency in the machine did not disclose itself until some three or four months afterward, when complaint was made to defendant and repeated efforts were made by it to make it run satisfactorily, but without success, and that finally defendant's agent, who could not make it work satisfactorily, admitted it was a "poor machine"; that finally the machine was discarded in April, 1919, some three years after it had been purchased.

It may be somewhat difficult to determine just what is the nature of plaintiff's action. While the petition may seem, in one view, to be a suit to recover the purchase price as upon a rescission of the contract because of the breach of warranty, yet no return nor tender of the machine is alleged. And, on the other hand, although the petition does not, in so many words, say plaintiff has been damaged, and does not even mention the word "damages," yet it does state that plaintiff paid $100 for the...