Bailey v. Emerson

87 Mo. App. 220 | Mo. Ct. App. | 1901

BOND, J.

The court gave eight declarations of law requested by defendant and refused two, one of the latter being to the effect that the verdict must be for the defendant and the other that the selection of an animal in exchange for the one purchased.be made (as there was evidence tending to show) was too late as a matter of law to afford plaintiffs any right under the terms of the warranty providing for such exchange. The court did not err in refusing these two requests, neither of them would be proper, in the conflict shown in the evidence as to the .breach of the warranty and the peculiar facts attending the return of the animal and the selection of a substitute. On these points the evidence tended to show that the jack delivered to plaintiffs was returned to defendant after one season’s trial as not being .up to warranty, that the parties at that time not being able to agree as to the selection of another jack, plaintiffs made some proposition for a return of their note given for the purchase money and waited for some time thereafter for a counter-proposition from defendant; that not receiving any such they returned from their home in Illinois to defendant’s ■stock farm in Missouri again in 1899, at which time a mutual agreement between the parties was had for the shipment to plaintiffs of a particular jack selected by them from the number exhibited by defendant, that defendant required plaintiffs to make a'written statement to him that they would make no claim for further substitution if the second jack proved impotent, that they declined to accede to this proposition whereupon defendant finally agreed to ship them the jack which they had picked out which, however, he failed to do, after repeated demands on the part of plaintiffs. That he also failed to return to plaintiffs any part of the sum expended by them in the payment of the note given for the first jack which they returned to him.

Under this state of the evidence we are not prepared to say that the delay in selecting a jack (in exchange for the oné purchased) from August, 1897, until 1899, was conclusively unreasonable as a matter of law. What is a reasonable time is generally a question of fact for the jury; it may, however, be a question of law for the court, and if the undisputed circumstances of the particular case show that the delay was without excuse or a just regard to the rights of the adverse party, in such instances, it is perfectly competent for the court to declare as a matter of law that a long delay thus occasioned is unreasonable and therefore preclusive of a right which depended for its enforcement upon being asserted in a reasonable time. Clearly the fadts in this record do not bring the delay resulting from the negotiations between the parties within this doctrine, hence the court did not err in the refusal of that instruction (nine) which so declared the law, neither did it err in the modifications of the other instructions requested by defendant so as to submit the question of reasonable time to itself, as a trier of facts.

II. We do not observe in 'the transcript any specific request for the court to make a finding of the facts under the provisions of section 695 of the revision of 1899. Where such a request is made by either of the parties before judgment, it is the duty of the court to state the conclusions of fact and law separately. Young v. Stephens, 66 Mo. App. 222; Kostube v. Miller, 137 Mo. loc. cit. 173, and cases cited. Such statement of facts should embrace all that are constitutive, and is open to attack in appellate courts for failure in this respect upon due exceptions saved in the trial court. Lowen v. Forser, 137 Mo. 38; Freeman v. Hemmenway, 75 Mo. App. loc. cit. 621. In the case at bar, the finding of facts was in ex gratia on the part of the court. But, had it been properly demanded and proper attack been made in the trial court, the objection that it does not embrace the substantive facts brought out on the trial, would have to be overruled, for an examination of the evidence adduced discloses that the material facts necessary to the solution of the issues between the parties are embraced in the statement and finding of the trial court. Our conclusion is that the judgment in this case be affirmed.

All concur.