50 Mo. App. 26 | Mo. Ct. App. | 1892
— This action is founded upon two contracts, executed by the defendants for the sum of $400 each, and also providing for an attorney’s fee, if enforced by law. It was agreed at the trial that a reasonable attorney’s fee would be $40. The contracts were in the form of promissory notes, with conditions, and were payable to the J. I. Case Threshing Machine Company, or bearer. They were due prior to the time of the bringing of the suit. The entire controversy arises upon the special defenses set up in the answer.
After a general denial, and then an admission of the execution of the contracts sued on, the answer proceeds to state that, on the day of - 1887, the defendants purchased of J. I. Case & Co. through the plaintiffs as their agents, — meaning as agents of J. I. Case & Co.— a ten-horse-power traction engine and one separator, with usual attachments, for which they agreed to pay the sum of $1,400, and for which, at the time, they executed their written contract to pay, the contracts sued on being a part thereof. The answer then proceeds to aver that the purchase price which the defendants agreed to pay for the engine was $1,000, and for the separator $400. It then avers that said purchase was made on a written order to said J. I. Case & Co., which order contained the following express warranty of said Case & Co. of conditions to be kept by said Case & Co. and by these defendants, to-wit: “The above machinery is warranted to be made of good material and durable; with good care and with proper usage to do as good work as any made in the United States. If it will not bear the above warranty after a
Having proceeded thus far, the answer turns aside to state another defense in the following language: “Defendants, for further answer, state that the said engine was bought for a specified purpose, to-wit: To use on the roads and pull a separator, and run a sawmill and run a separator for threshing purposes, which facts were made known to plaintiffs, and also to them as agents of J. I. Case & Co., at the time of said purchase, and that it proved utterly worthless for the purposes it was bought for.”
Then, taking up the thread of the warranty previously pleaded, the answer continues thus: “Defendants further state that the aforesaid machinery did not fill the aforesaid warranty in this: That the aforesaid traction engine was not made of good material, and was not durable, and would not with good care and
The answer, having thus pleaded what has been called by the supreme court of this state a conditional warranty (Nichols v. Larkin, 79 Mo. 264), did not attempt to plead a performance on the part of the defendants; but it undertook to plead a waiver of performance by J. I. Case & Co., in the following language: “Defendants further state that said J. I. Case & Co., and these plaintiffs, who were then their agents, were notified of the aforesaid failure of warranty and defective machinery, when said company sent an expert to repair and make good the same, which he attempted and endeavored to do, the defendants furnishing friendly assistance. Whereupon defendants, after again 'attempting to use and thoroughly trying said engine, found that the said defect and imperfection had been remedied, and notified these plaintiffs, then the agents of J. I. Case & Co., of such fact. Whereupon they
The rest of the answer states certain matters of counterclaim, with which we need have no concern, because the jury found in favor of the plaintiffs as to that.
Then plaintiffs filed a reply, which, after denying the new matter set up in the answer except as admitted, contained the admissions that the defendants purchased of the plaintiffs as agents of J. I. Case & Co. a ten-horse-power traction engine and separator for the price and sum of $1,400. But the plaintiffs deny specifically that the purchase price of the engine was $1,000, and that of the separator $400; but they aver the fact to be that the engine and separator were purchased for the aggregate sum of $1,400 upon a written order to J. I. Case & Co. and a limited warranty of J. I. Case & Co. as set up in the answer. The reply also denies specifically that the defendants ever complied with the terms of the warranty, or that the plaintiffs or J. I. Case & Co. ever waived the terms or conditions of the warranty, or that the defendants ever gave J. I. Case & Co. any written notice of any defect in the machinery, or that they ever waived the same.
On these pleadings the cause went to trial before a jury, and the defendants had a verdict and judgment on so much of their answer as was in the nature of a plea in bar; and the plaintiffs had a verdict and judgment against the defendants on so much of the answer as
At the trial evidence was given, which showed without controversy that the separator and the traction engine were purchased by the defendants from the J. I. Case Threshing Machine Company — called indifferently in the pleadings as above seen, by its proper name and also by the name of J. I. Case & Co., — by a written and printed order, signed ,by the plaintiffs, dated June 3,1887. The J. I. Case Threshing Machine Company was a corporation doing business at Racine, Wisconsin, organized under the laws of that state. This order was the same referred to in the answer of the defendants, and it contained the conditional warranty which they set out in their answer, as above recited, in hæc verba, and also a further clause hereafter stated. The defendants gave evidence tending to show that the machine was delivered to them in Scotland county, Missouri, about the fifth of July, 1887; that they got to work with the machine, and threshed with it during the fall season of that year, earning by so doing some $600 or $700, and threshing all the grain with it which they could get to thresh. They did not complain to the J. I. Case Threshing Machine Company, nor to these plaintiffs, after a trial of ten days, as required by the terms of the warranty, or during that season, that the engine would not satisfy the warranty. They did, however, on August 1, 1887, procure Mr. Moore, a merchant at Arbela, who attended to their correspondence for them, to write to these plaintiffs a letter containing the following request: “Mr. Neel [one of the defendants] tells me to send to you for one lubricator on steam chest. This is broke. Send this and grab claws. They want this cup at once for steam chest.” More than two months after this, namely, on the fourth of October, 1887, the defendants, having
The court submitted the case to the jury upon four instructions, which embodied the theory of law that, if the engine proved useless for the purpose for which it was purchased, provided the plaintiffs or the J. I. Case Threshing Machine Company were notified of that purpose, there could be no recovery upon the contracts in suit; and that the plaintiffs would not be entitled to recover, as the purchase price of the same, an amount beyond the actual value as shown by the evidence. On the other hand, the court refused the following instructions requested by the plaintiffs: ‘‘Under the contract of purchase of machinery, it was the duty of the defendants to notify both the J. I. Case Threshing Machine Company and the plaintiffs, after a ten days’ trial of the machinery, of the defects wherein it failed to fill the warranty; and if the jury believe from the evidence that the defendants did not, immediately after a ten days’ trial, so notify both Bowman & Boyer and the J. I. Case Threshing Machine Company, the verdict of the jury must be for the plaintiffs, notwithstanding the plaintiffs and J. I. Case & Co. afterwards repaired said machine.”
"Although the jury may believe from the evidence that the machinery purchased by the defendants of J. I. Case & Co. was defective, and did not fill the conditions of the warranty introduced in evidence, yet, under the contract of purchase and warranty, it was
But the court did give, at the request of the defendants, the following instruction: “The court instructs the jury that, under the contract of purchase and warranty in this case, the jury will not be authorized, in passing upon the question as to whether such notice was waived or not, to take into consideration any of the acts or conduct of J. I. Case & Co., or of Bowman & Boyer, after the expiration of the ten days’ trial of said machinery by defendants.”
In view of the giving of the last instruction, we find it somewhat difficult to conclude what was the theory of the learned judge who tried the case; but, it is perceived from this long recital of the pleadings, the evidence and the instructions, that the case was submitted to the jury upon that part of the defense set up in the answer, which pleaded that the engine was entirely worthless for the purposes for which it was purchased, of which purpose the vendor had knowledge at the time of the sale — ignoring for the most part the fact, that there was a special contract prescribing what should be done in such a case. If this case was properly tried, it would be utterly useless for the vendors of farm machinery to endeavor to protect themselves by clauses in contracts of sale, such as the one which the defendants have set up in their answer and which has been shown in evidence; because the defendant could plead at the same time that the machine had become entirely worthless for the purpose intended, which purpose was known to the vendor at the time of the contract of sale, and could thus step aside from the
The principle upon which the defendants predicate this defense, and upon which it has been submitted to-the jury, has been laid down in this state in the following cases: Brown v. Weldon, 99 Mo. 564, affirming s. c., 27 Mo. App. 251; Compton v. Parsons, 76 Mo. 455; Murphy v. Gay, 37 Mo. 535; Barr v. Baker, 9 Mo. 840. In none of these cases was the principle applied so as to do away with the terms of a conditional warranty, whereby the vendee agreed, after a certain trial of the thing sold, to notify the vendor of its. defectiveness, or to return the same, or otherwise. Nor could such an application be made of the principle in such a case as that before us, without going to the extreme of holding that the parties to a sale are not. to be allowed to make their own contract, but that a. rule of law can be opposed by the judges to a special contract which the parties have seen fit to make for themselves, which contract in no way contravenes any rule of law or of public policy.
We have been referred to the case of Keystone Implement Co. v. Leonard, 40 Mo. App. 478, as holding that, in actions for the purchase price of a machine, a defense-of breach of warranty, and a defense that the machine was worthless for the purpose for which it was pur
They, moreover, failed to plead or to prove that, after a trial of ten days, they immediately gave written notice to the J. I. Case Threshing Machine Company and the agents of whom the machine had been purchased, Stating that it failed to satisfy the warranty, as required by the terms of the warranty itself. But, in lieu of this, they attempted -to plead and prove a subsequent waiver by the J. I. Case Threshing Machine
It thus appears indisputably that the plaintiffs were entitled to a judgment upon the notes or contract, which are the subject of the suit, according to their tenor, with the addition of $40 admitted to be a reasonable attorney’s fee, under the terms of those contracts, but with the abatement of $175 admitted by the answer to have been realized, exclusive of charges and expenses, from the sale of the machinery under the chattel mortgage. In the abstract of the record before us, the notes are not set out, nor is the date of the sale under the chattel mortgage given; and we cannot, therefore, make the computations of interest necessary to the entering of judgment in this court, or- to the directing of the exact judgment which should be entered in the circuit court; but we reverse the judgment, and remand the cause, with directions to the circuit court to cause the proper computations of interest to be made, and to enter judgment for the plaintiffs in conformity with the basis here laid down. It is so ordered. All the judges concur.