264 S.W. 466 | Mo. Ct. App. | 1924
The plaintiff recovered a judgment in the trial court in a suit on an open account, from which judgment the defendants appealed. The petition is in the usual form, and attached thereto is a copy of a statement of the account and the invoices of the goods sold. The answer was a general denial and a counterclaim asking damages on account of the breach of warranty under which the goods were sold. The statement of account attached to plaintiff's petition contains some 25 or 26 items, showing a balance due plaintiff according to said statement of $174.64. Something like 11 or 12 invoices, showing the items and charges, were attached to the statement which was made a part of the petition; said statement and invoices covering ten pages of the printed abstract before us.
The trial court appointed a referee, over the protest of the defendants, and one of the errors assigned on this appeal is that the case is one that should be tried by a jury and was not referable. We think the cases cited by respondent clearly disposes of this point. The general denial placed the correctness of plaintiff's statement in issue and each of the invoices and items contained therein. In addition to this the counterclaims set up — some ten or twelve — alleged breaches of the contract. The following cases sustain the action of the trial court in making the compulsory reference and hold that the question of whether a compulsory reference is to be made is to be determined by the pleadings. [Craig v. McNichols Furn. Co., 187 S.W. 793, l.c. 797; Smith v. Haley,
The counterclaims in this case were based on a warranty made in a written contract by the plaintiff, containing the following provision:
"We do not guarantee pneumatic automobile tires for any specific mileage, but every pneumatic automobile tire bearing our name and serial number is warranted by us to be free from defects in workmanship or material."
"Tires claiming to be defective will be received only when all transportation charges are prepaid, and when accompanied by this company's claim form duly filled out and signed by the owner. If, upon an examination it is our judgment that the direct cause of the failure of the tire to render satisfactory service is attributable to faulty material or workmanship, we will, at our option, either repair the tire or replace it for a charge which will compensate for the service rendered by the returned tire, based upon its general appearance and condition."
"Pneumatic automobile tires in which a substitute for air has been used, tires used when not inflated to the pressure recommended by us, used under loads in excess of those recommended by us, used on wheels out of alignment, abused or misused, used on rims other than those bearing these stamps, or which have been injured through accident or design, are not subject to claim hereunder."
"This company does not authorize any dealer or agent to make any other or additional guaranty or warranty."
This contract clearly refers all adjustment to be made to the plaintiff.
The defendants' evidence on the counterclaims tended to show that the automobile tires sold by plaintiff to defendants failed to give satisfactory mileage, and also tended to show that the tires were defective in material and workmanship. On the other hand the plaintiff had some evidence tending to show that the tires upon which *288 adjustments were denied were not defective or not lacking in workmanship as guaranteed in the contract.
The provisions of the contract and warranty which we have set out placed the entire question of whether the warranty was being complied with in the judgment of the plaintiff. In other words, it makes the plaintiff the arbiter of the question of whether the warranty was breached. The contract upon its face is a harsh contract upon defendants, and one in which they have placed every question that they raise on this appeal as to the defective workmanship and material in the hands of the plaintiff to decide. There is no attempt to plead or prove that the decision which was made by the plaintiff's adjuster was arbitrary or fraudulent. The correspondence shows that on the items claimed by plaintiff some adjustments were offered, which were refused, and others were denied outright.
Under a contract similar to this, in the absence of fraud on the part of the arbiter, we know of no relief that can be granted. [See McCormick v. City of St. Louis,
The items of defendants' counterclaims went clearly to the breach of warranty and were therefore ex contractu. The pleadings made out a case calling for a reference, because the account was long and the questions raised on the counterclaims were many. The referee's report, adopted by the trial court, has substantial testimony to support it. Plaintiff's evidence on the account sustains a finding that the balance claimed and given in judgment was due, and there being no showing that the adjustments made by the plaintiff on the claimed defects were actuated by fraud, there remains but one course open which is to affirm the judgment.
Some mention is made about an item of $24.35. Plaintiff's testimony explained this showing that this item consisted of an incorrect credit claimed by the defendants *289 in making a remittance, which incorrect credit the plaintiff gave on its books and charged the same amount back against the defendants merely as a matter of bookkeeping. The testimony of plaintiff further shows that it then gave the defendants a correct credit.
If the defendants are aggrieved in the transactions which they carried on with the plaintiff, and we do not say that they are not, it is due not to errors in the trial of the case, but can be laid to the character of contract which they entered into. Finding no reversible error in the trial of the case, the judgment is affirmed. Cox, P.J., and Bradley, J., concur.
