182 Mo. App. 50 | Mo. Ct. App. | 1914
This is a suit on several promissory notes, all dated June 30, 1911, and payable at monthly intervals, given by defendants in payment of a machine for tightening and setting wagon and buggy tires without heating same and designated as a Brooks’ Cold Tire Setter. The suit was commenced in á justice of the peace court on March 9, 1912, and was removed to and tried in the circuit court at the August term, 1913. The tire setting machine in question was purchased from plaintiff by defendants under a written contract containing the stipulations that: “Should we (purchasers) be unable to make the machine work according to warranty, we agree to write the company (plaintiff), fully explaining in what way the work is not according to warranty, and we further agree to hold the machine and take good care of it until the company instructs us in its operation, or if they deem it advisable, sends a representative to make a demonstration. Failure to notify the company within ten days after receipt of machine shall be an acknowledgment that the machine does the work according to
The defense which -the defendants made to the notes is a failure of consideration and there was evidence to prove that the machine would not do the work it was designed to do; that it was a failure and worthless as a tire setting machine. There was evidence to the contrary on this proposition. There is no claim that there were any defects peculiar to this particular machine, the claim being that no machine of this character and make, constructed and operated on the plan of this one, could be made to do the work it was designed to do. Some witnesses testified, however, that like machines would and did work well and were a success.
The defendants testified that this machine would not and did not do the work it was intended to do from the start and that they ascertained this in a few days after it was received. They admitted, however, that they did not in any manner write to or notify the plaintiff that the machine was not working properly or that they had any fault to find with it; that they retained it and kept on using it until this suit was brought. The machine was received about the date of the contract, June 30, 1911; the defendants retained and used same without complaint to plaintiff and paid the first note when it became due August 1st, thereafter. The notes were at a local bank for collection and the first letter or communication or notice to plaintiff as to defendants paying or not paying the notes is a letter from them to plaintiff dated November, 27, 1911, in answer to one urging payment, saying that defendants
The only excuse given by defendants for not notifying the plaintiff that the machine in question was not working right or would not do the work intended is that a Mr. Wright, at the bank, said to them that it would do no good. This must have been after the first note was paid. The first knowledge that plaintiff had that the defendants were claiming that the machine in question would not do good work and was'worthless was after this suit was brought.
It is clear that defendants utterly failed in making any defense to these notes. They admitted the execution of the notes and the written contract containing the warranty and conditions above set out. They admitted they did not comply with the written stipulations, which is in the nature of a condition precedent, to the effect that if they were unable to make the machine work according to warranty, they would write the company, fully explaining in what way the work is not according to warranty, would hold the
The defendants rely in this case on the implied warranty that the machine sold would do the work it was intended for and that if it proved to be worthless for such and any purpose, the defendants could retain the same and plead a failure of consideration. It is well settled, however, that where there is a special contract of warranty, imposing conditions precedent, it takes the place of a like or inconsistent implied warranty and that defendants cannot plead and prove a failure of the implied warranty and thereby escape the performance of the conditions precedent. A failure of consideration under an implied warranty of the goodness of the thing sold cannot be set up so as to do away with the terms of a special contract which the parties to the sale have seen fit to make for their government in case the thing sold turns out to be defective or worthless. [Boyer v. Neel, 50 Mo. App. 26, 35; Wood Machine Co. v. Bobbst, 56 Mo. App. 427; Machine Co. v. Gasperson, 168 Mo. App. 558, 571, 153 S. W. 1069.] It is well-settled law that where there is a written warranty with conditions precedent annexed thereto, that defendant is bound to said conditions ; and to make a defense of failure of consideration available the defendant must prove a compliance on his part with all the conditions imposed. [Nichols-Shepard Co. v. Rhoadman, 112 Mo. App. 299, 308, 87 S. W. 62; Nichols, Shepherd & Co. v. Larkin, 79 Mo. 264; Machine Co. v. Gasperson, supra.] Whenever machinery is sold on a written contract with warranty and stiprrlations as to what the buyer must do in order to take advantage of such warranty, then failure of consideration, either in whole or in part, cannot be
Plaintiff did not, however, ask a peremptory instruction, to which it was clearly entitled, to find for plaintiff and the trial court cannot be convicted of error for not giving same of its own motion. Instead of so doing, the plaintiff submitted the case on an instruction as to a partial failure of consideration and permitting the jury to find for plaintiff in an amount equal to the difference between- the contract price and the real value of the property. It is suggested that as plaintiff adopted this theory in the trial court, it ought to be bound by the same in this court. There is considerable force in this suggestion, though we do not know of any case where defendant utterly failed in making a defense and his admissions and the documentary evidence clearly showed that plaintiff is entitled to recover, that a verdict for defendant was sustained because the plaintiff adopted a wrong theory in his instructions. However this may be, we find that the court, at defendants’ instance, gave -an instruction to the effect that the evidence that defendants did not offer to return the machine until some time after the. several notes given for the purchase price became due and suit was threatened could not be considered by the jury for any purpose except in determining whether the machine was efficiently and satisfactorily doing the work which it was guaranteed to do. Under the evidence in this case, this instruction is clearly wrong. The written warranty which governs this case was not
It results that the case will be reversed and remanded.