74 Mo. App. 676 | Mo. Ct. App. | 1898
— The appellant is a Michigan corporation. On or about the thirtieth day of May, 1895, respondents purchased from appellant, through its local agent, H. L. Ahlfeldt, at Laddonia, Missouri, one fifteen horse power compound steam traction engine and one grain separator, with the usual fixtures and appendages, for which they executed their note to appellant for $1,115. At the same time they purchased and ordered a straw stacker,known as the “Uncle Tom,” under the following written stipulations and warranties:
■ “Dated at Benton Cm, Mo., May 30th, 1895. “Advance Thresher Company, Battle Creelt, Mich.
“You will please attach an Uncle Tom (instead of your regular stacker) to the separator heretofore ordered by me from you. I propose to run this separator with an engine made by Advance Thresher Co., of 15 compound horse power.
“The above stacker is ordered, purchased and sold subject to the following express warranty and agreement, and none other, viz:
“That the said stacker is well made, of good material, and when properly run and rightly managed*679 will carry off the straw and chaff and stack them together, clear of the separator, with the help of one man to direct the chute and blast. It is expressly agreed that upon starting this stacker, if the undersigned are not able to make it operate well, written notice by registered letter, stating wherein it fails to satisfy the warranty, is to be immediately given by the undersigned to The Advance Thresher Company, at Battle Creek, Michigan, and also to the dealer through whom purchased, and reasonable time allowed them to get to it and remedy the defect, if any, unless it is of such a nature that they can advise by letter, and the undersigned hereby agree to render all necessary and friendly assistance, and that if they fail to make said stacker perform, through improper management or lack of proper appliances, they will pay all necessary expenses incurred. It is expressly agreed that any failure or deficiency in said stacker shall be reported by the undersigned in writing, by registered letter, as above stated, within five days after starting said stacker, and longer use, or use without such written notice is conclusive evidence of satisfaction and fulfillment of all warranty. '
“It is expressly understood and agreed, that all warranty on this stacker terrain ates and expires, and all liability of the Advance Thresher Company to an action for breach of warranty or recoupment for damages, set-off or otherwise, ceases entirely at the close of this year, and statute of limitations to the contrary notwithstanding, and that all warranty is to be invalid if this stacker is not fully settled for when delivered.
“It is expressly agreed that if any part of said stacker fails during this year, in consequence of defect in material of said part, the Advance Thresher Company have the option to repair the same or to furnish*680 a duplicate of said part free of charge, except freight, after presentation of the defective piece, cleax’ly showing flaw in material, at the factory o.r to the dealer through whom said stacker was bought, at any time within this year, but deficiencies in any piece not to condemn other parts.
“It is further expressly understood and agreed by the undersigned that the sale and warranty of this stacker is wholly separate and distinct from the warranty and sale of any other machinery and of the separator to which this stacker is attached, and that a failure in whole or in part in said stacker in no way affects the sale or warranty of said separator or other machinery, but that if said stacker can not be made to work as warranted, then the undersigned may remove the same fi’orn said separator and may order from said Advance Thx’esher Company their regular ordinary stacker, eighteen feet long, with raddle, belts, shafts, etc., complete, to attach to said separator at a cost of thirty dollars ($30) and freight, and the cash and notes given in settlement of this Farmer’s Friend stacker shall be returned or credited upon the notes of the undersigned, axxd said Advance Thresher Company shall be discharged from all liability whatever on account of said stacker.”
For the straw stacker the respondents agreed to pay $235, .and executed their note to appellants for that amount, due October 1, 1895.’ To secure the above notes the respondents executed to the appellant a chattel xnortgage on all the machinery purchased. The $1,115 note was paid; the $235 note for the straw stacker the respondents refused to pay, axid appellant brought its suit to replevy all the property included in the chattel -mortgage. Respondents by an amended answer plead the general issue, and specially, first, that respondents did not own or claim the straw
A reply was filed to the new matter contained in the amended answer. On trial by jury a verdict was rendered for the respondents, from Which, after an unsuccessful motion for new trial, the thresher company duly appealed.
The evidence on the part of the respondents tended to prove that they started to operate the stacker some time in the month of July and continued to thresh and use the stacker, until about the first of September following, when they abandoned the stacker and gave notice by registered letter to appellant that it did not operate well, the receipt of which, was acknowledged by letter, in which appellant agreed to send a man immediately to remedy the defects in the stacker. The man, however, was never sent. That when respondents first attempted to operate the stacker it choked up and did not work well, and in two or three days after starting it Mr. Ahlfeldt, the agent of appellant, did some work on it to prevent it choking up; that N. S. Cook, who had charge of the general agents of the appellant, about the twenty-sixth
Under a general denial in a replevin suit, the defendant may show anything that will defeat the plaintiff’s right to possession. Pugh v. Williamson, 61 Mo. App. 165. Nor are we prepared to say there was no evidence of a waiver. From the fact that Ahlfeldt, appellant’s local agent, Cook its general agent, and
The instructions given by the court on behalf of appellant were favorable to it, and covered fully every issue presented by the pleadings and the evidence. The court at the instance of the respondents gave the following instruction:
instruction. “The court instructs the jury that if they find from the evidence that the plaintiff sold the defendants the stacker in question to be used by defendants in stacking straw in connection with a thresher purchased by defendants of plaintiff at the same time, and j ury further find from the, evidence that said stacker would not and' did not do said work; and the jury find from the evidence that the said stacker was worthless and that defendants on the-day of September, 1895, gave written notice by registered letter to plaintiff at Battle Creek, Michigan, and also to the local agent, of the insufficiency of said stacker, and that plaintiff at the time of receiving said notice knew or by the exercise of ordinary care might have known that at the time of said notice, the said stacker had been in operation for more than five days previous to said notice, wrote to defendants promising to send a man immediately to remedy anything wrong with said stacker, to assist defendants in making it do good work, and that plaintiff intended thereby to waive the failure of defendants to give notice of the insufficiency of said stacker within five days after it was*684 started in operation, then the verdict will be for the defendants.’