27 Mo. App. 251 | Mo. Ct. App. | 1887
That portion of the reply struck out by the court constituted, so far as it went, a good defence
If the defendants should prove the facts pleaded in the answer concerning the jack, it would then devolve upon the plaintiff to prove the facts alleged in the reply. Daniel on Neg. Ins., supra. It is true that a •general warranty that a horse is sound “does not usu
There was evidence upon which to base instruction numbered thirteen, asked by the defendant, and it should have been given. If the stallion was an imported Norman stallion, and entitled to be registered in the Norman Stud Book, and if the defendant, Weldon, could have had the stallion so registered for a sum, certain and ascertainable, then that sum was the correct measure of damages for a breach of the warranty that the stallion was thus registered, in the absence, as in this case, of special damages resulting from the breach of said warranty through no fault on the part of said Weldon, in failing to have the stallion registered. Rescission of the contract was not pleaded. Evidence, therefore, of an offer by the defendant, Weldon, to return the horse and jack, was not admissible. Rescission of a contract must be specially pleaded. Riggins v. Railroad, 73 Mo. 607.
Declarations made by Christ, subsequent to the sale, as to what Virgin and Brown would do in the premises, were clearly inadmissible, because Christ was not then the agent of the said firm. Scovill v. Glasner, 79 Mo. 456. Such declarations were inadmissible for any pur
What was the proper measure of damages in this case % In determining this question it may be well to consider the character of the defences set up in the answer. Are those defences founded upon a failure of consideration, ox upon a breach of warranty, and fraud, and deceit in the sale of the horse and jack ? A total, want or failure of consideration may always be insisted on as a complete answer to an action, on an executory contract, as between the parties to the contract. But what constitutes a total want or failure of consideration ? In Perley v. Balch (23 Pick. 283), it was said: “ If a chattel be of no value to any one, it cannot be the basis of a bargain; but if it be of any value to either party it may be a good consideration for a promise. If it is beneficial to a purchaser, he certainly ought to pay for it. If it be a loss to the seller, he is entitled to a remuneration for his loss.” The rule thus laid down has been approved in
Prom these authorities it can be clearly deduced that if the horse or jack was, although worthless for the purpose for which it was sold and bought, of any value whatever, there was not a want or failure of consideration for the note or notes given for the one or both of them, as the case was, which had any value. Where there is neither warranty nor fraud in a sale, the purchaser, in an action for the purchase price, cannot insist on inadequacy of consideration as a ground for reducing the damages. Johnson v. Titus, supra; Gillespie v. Torrance, 25 N. Y. 307. If in the case at bar there had been neither a warranty nor fraud in the sale, defects in the quality and condition of the horse and jack would have constituted no defence. Where, then, the purchaser gets the specific chattel which he intends to buy, and the chattel is of some value, there is neither a total nor partial want or failure of consideration. In this case»
If there were, however, a warranty, and a breach thereof, as alleged in the first count of the answer, by reason whereof the purchaser was damaged, he could, in this action for the price of the warranted animals, set up those damages Toy way of counter-claim. Prior to the adoption of our code, such damages could have been set up by the purchaser, in such an action, by way of recoupment, to only reduce or extinguish the claim made by the vendor, and not to obtain affirmative relief where the damages exceeded said claim ; but, under our code, in the term, “counter-claim,” are included not only what was before known as set-off and recoupment, but, also, something in addition thereto, and now the purchaser can set up said damages as a ground for affirmative judgment where they exceed the claim made by the vendor. Hay v. Short, 49 Mo. 142; Gillespie v. Torrance, 25 N. Y. 300. Such damages are not founded upon a failure of consideration, total or partial, but are founded upon the contract of warranty, on the sale and the breach thereof; but, because, without the aid of a statute authorizing it, the damages could, when set up as a defence to an action for the price, only go to reduce or extinguish the claim thus made, the defence, when made, was often called that of a failure, or a partial failure, of consideration. But the defence, properly speaking, has no relation to a failure of consideration, total or partial.
In Sutherland on Damages (vol. 1, p. 265), it is said: “ Some confusion has arisen from treating this defence as one of failure of consideration.” In Ferguson v. Huston (supra), it was held, by Tompkins, J., that the damages on account of the breach of warranty could not be set up by way of recoupment, and that the purchaser could make no defence “ unless he prove that it [the carriage] is worth nothing at all.” In other words,
The view expressed by Napton, J., was declared the law in Wade v. Scott (7 Mo. 509), and, as such, has continued to be in this state to the present time, with the change made by the adoption of our code authorizing an affirmative judgment, as stated above. In the latter case, Scott, J., who delivered the opinion, recognized the distinction between the defence of the failure of consideration and that of a breach of warranty. He said “the distinction seems to be well settled, that, when, the article sold' is of any, the least, value, notice must be given of the defence (that of a breach of warranty or fraud), but if it is entirely worthless, then, under the general issue, the defendant will be entitled to a verdict, no notice being necessary.”
Gillespie v. Torrance (25 N. Y. 310) was a suit upon a promissory note given for a part of the price of certain timber. It was said, by Seldon, J., who delivered the opinion of the court, “the argument of the appellant’s counsel, to maintain the position that the defence rested upon a failure of consideration, and not upon a claim for damages on a breach of warranty, is very ingenious ; but the answer and the proof show that all the timber contracted to be delivered to YanPelt, and for which the notes were given, was, in fact, delivered, and the real ground of complaint is, that a much larger proportion of it than was shown by the inspector’s certificates, upon the faith of which the purchase was made, proved to be of an inferior quality. The law being well
The distinction between the defence of the want or failure of consideration and that of a breach of warranty is further shown by this: The defence of the want of consideration, except in actions upon an instrument prima facie importing a consideration, is not new matter, and may be proved under the general issue ; but “where suit is brought for goods sold and delivered, or bargained and sold, the defence of a warranty on the sale and a breach thereof is clearly new matter.” Pom. Rem. Rights, sect. 709; Fetherley v. Burke, 54 N. Y. 646.
In case of fraud in the sale of a chattel, where the purchaser, on discovering the fraud, retains the chattel, and thus affirms the contract, he is entitled to the damages which he has sustained by reason of the fraud.' Our remarks concerning the damages on account of a breach of warranty apply with full force to the damages caused by such fraud. The character of the defence setting up damages caused by a breach of warranty in a sale of a chattel may be summed up as follows: “In ordinary cases of breach of warranty, therefore, both contracts remain binding to their full extent, and where recoupment is allowed, damages for a breach on one side are set off by like damages on the other side. The cross-claims arising out of the same transaction compensate one another, and the balance only is recovered. ” Gillespie v. Torrance, supra.
The defences pleaded in the first and second counts of the answer are clearly those respectively of a breach, of warranty and fraud and deceit in the sale of the horse and jack. This is true, not only from what we have said, but, also, frqm the fact that an affirmative judgment is asked against the plaintiff, in favor of the
Where special or consequential damages are not asked, and where the warranty and the fraud or deceit are in respect of the same particulars, the measure of damages is the same. Schultz v. Christman, 6 Mo. App. 343; Anslym v. Frank, 8 Mo. App. 247. And that measure of damages is the difference between the actual value of the article at the time of the sale, and what it would have been had the article been as it was warranted or represented to be. Walls v. Gates, 6 Mo. App. 246; Anslym v. Frank, supra, and cases cited; 2 Suth. on Measure of Dam., 422, and cases cited; Courtney v. Boswell, 65 Mo. 199. There was not a total want or failure of consideration, as we have seen, if the horse or jack was of any value for any purpose, although worthless for the purpose for which they were sold and bought. And if the difference between the actual value of the horse and jack, at the time of the sale, and what their value would have been, had they been as warranted or represented to be, was not equal to the claim made by the plaintiff, the damages to which the defendant, Weldon, was entitled, in the absence of special or .consequential damages, to which we do not
In Voss v. McGuire (18 Mo. App. 482), decided by this court, it was said that the defence of a breach of warranty is not, properly speaking, a counter-claim, but is that, if it is made in diminution of the price, of a partial failure of consideration; and that such defence does not have to be specially pleaded, but may be proved under the general issue. The question thus decided was not before the court, but, inasmuch as it was clearly decided erroneously we take this opportunity to overrule that case in the respect and to the extent indicated. Ellison, J., concurs in a separate opinion ; Philips, P. J., dissents in a separate opinion, holding that the views expressed in the foregoing opinion are in conflict with certain decisions of the Supreme Court.
The result is, that the judgment is reversed and the cause remanded, and that the cause and transcript of the record are hereby ordered to be certified to the Supreme Court, for its final determination, and that until such determination all proceedings upon the judgment of this court be stayed.
SEPARATE OPINION.
I am fully satisfied with the position taken by Hall, J., with reference to a failure of consideration and a breach of warranty. I agree, also, with
But I do not agree with Philips, P. J., in the opinion that the views of Hall, J., on the question, are in conflict with the Supreme Court. In making this remark, I leave out of view the distinction taken by Hall, J., as to the difference between a failure of consideration, total or partial, and a breach of warranty. His views are correct on principle, but the Supreme Court uses the term, “failure of consideration,” interchangeably with damages on a breach of warranty. But these different modes of expression do not affect the question. The only cases involving the question, to which the attention of any of us has been called, are those of Ferguson v. Huston (6 Mo. 407); Wade v. Scott (7 Mo. 509); Barr v. Baker (9 Mo. 850); Murphy v. Gay (37 Mo. 535); Compton v. Parsons (76 Mo. 455); and Kerr v. Haymaker (20 Mo. App. 350).
Before referring to these cases in detail, it may be well to state that in the sale of a chattel for a .specific purpose, there is, in the absence of an express warranty, an implied warranty that it is fit for such purpose. And it might be well held (though I do not now pretend to say), that if the sale is for a specific purpose with warranty, express or implied, as distinguished from a sale generally, with warranty, and the chattel is not fit for such purpose, though of value for other purposes, the vendee may rescind if he exercises his option in season ; but if there is no rescission by a return or offer to return, the vendee will only be allowed damage in diminution of the price, as is stated in Judge Napton’s five propositions in 6 Mo., hereafter referred to, in regard to sales by manufacturers. But, conceding the right of rescission, in. no event can
In Ferguson v. Huston (supra), Napton, J., lays down five propositions, which are the law to this day. The law, as thus laid down, was approved in each of the cases above mentioned. The fourth proposition might have included with sales of manufactured articles by the manufacturer, sales by sample, as such sales would be governed by the same rule. From these propositions it will be seen that if the breach of the warranty goes to the entire consideration, that is, if the chattel is wholly worthless for any purpose, it is a bar to the action without a return, or offer to return. In such case, when the warranty fails, the consideration likewise fails. The consideration fails as effectually as if there was no title. Second, in the sale of a specific chattel (generally) accompanied by a warranty, but without fraud, the title passing in praesenti, there canbeno rescission, notwithstanding there may be a total breach of the warranty. Authorities supra; Muller v. Eno, 14 N. Y. 597; Walls v. Gates, 6 Mo. App. 242.
This view is also taken by eminent text-writers, and most of the courts of the Union. Benjamin on Sales,, sect. 888, and note. Third. If there be a sale, by sample, or of a manufactured article, by the manufacturer,, with warranty, the vendee may return the property, in a reasonable time. Wade v. Scott, supra. If he does not return it, he may still give in evidence, in a suit against him for the price in reduction of the price agreed upon} the breach of warranty, without resorting to a separate action. Murphy v. Gay, supra. In this last case, it will be noticed by the last paragraph of respondent’s brief, that he admits the actual value of the goods may be recovered, in a suit on the note for the price, though worthless for the purpose of their purchase. Is there any justification for an instruction giving the vendee the case, in an action involving the sale in praesenti of a specific chattel, if the chattel was worthless for the purposes
The case in 7 Mo. was a sale of a specific article in praesenti, and it was held that there cpuld be no rescission for a breach of the warranty, though evidence of the breach of warranty might be given to show damages in diminution of the price. But if it be a manufactured article, sold by a manufacturer, a rescission may be had in a reasonable time, or if the contract be executory. •
The case in 37 Mo. was a sale of a manufactured article, sold on order, and while the vendee notified the vendor of the worthlessness of the article, the court
The case in 76 Mo. was the sale of a patent-right device, as appears from the statement, and, whether sold by the manufacturer on order, or was a specific sale in praesenti, does not appear. Certain it is that Sherwood, J., considered, as he hardly otherwise could have done, that a patent “water-drawer,” worthless as such, was worthless for any purpose, and could, therefore, be rightfully placed under the first proposition, by Napton, J., in 6 Mo. Sherwood, J., cites, in support of his opinion, the case in 37 Mo., and cases cited therein, including the case in 6 Mo.
The case of Kerr v. Haymaker (20 Mo. App. 350), was the sale of a manufactured article, on order, which turned out to be of no value for any purpose, thus falling under the first proposition in the case in 6 Mo.
In none of these cases is the proposition asserted that, if the article is worthless for the purpose for which it is bought, or warranted, that the entire contract price may be defeated, though the article was of value for other purposes. They evidently maintain the reverse of this. The whole misunderstanding of the rule in this matter has arisen from the case of Barr v. Baker (9 Mo. 850). The chattel in that case was a jack, sold in praesenti, and warranted as a foal-getter. Witnesses testified, not only that he was worthless as a foal-getter, but was worthless for any purpose. The instructions given by the trial court for either side were squarely under the case in 6 Mo., per Napton, J., and that in 7 Mo., and
The whole trouble has arisen from the additional remark of the judge that, “ if the article which forms a consideration of the note be worthless, for the purpose for which it was purchased, the consideration has wholly failed, although it may be of some value for another purpose.5 ’ This was an inadvertent remark, not pertaining to a decision of the case, and which was, doubtless, not intended to overrule the cases in 6 and 7 Mo., which had just been approvingly cited. The remark has stood for forty years to vex the profession, but, as may be seen by the foregoing cases, has never been sanctioned by the courts. The reverse of that remark is true. If the article is of value for some other purpose, the consideration has not loholly failed. The consideration has only failed to the extent of the damage to the vendee by breach of the warranty. But it is said in support of Judge McBride’s remark in 9 Mo., that, when one buys for a specific purpose, such purpose is the consideration, and not the article, and, therefore, if the purpose fails so does the consideration, and it may be shown on trial, without a return of the property, to the defeat of the vendor’s entire claim.
This position would better commend itself to me, if the vendee only purchased the use of the property for the warranted purpose, and only became the owner of the right to use the property for such purpose. But by the purchase he becomes the general owner, for the warranted and all other purposes. And though the chattel be useless for the warranted purpose, yet it may be equal in value to the contract price for other purposes; in such cases there is no damage unless there should be consequential damages.
If the vendee retains the property, which was the consideration of his promise, he must pay the price, less the damages caused by the breach of warranty. The measure of such damages is the difference between
SEPAEATE OPINION.
I cannot concur in so much of the opinion by my associate, Judge Hall, as seeks to maintain that the instructions given for defendants asserted error in directing a verdict for defendants, if the jury found from the evidence that the horse and jack were worthless for the purpose for which they were sold and bought, although they might be of some value for some other purpose.
In Barr v. Baker et al. (9 Mo. 854), the Supreme Court say: “If the article which forms the consideration of the note be worthless for the purpose for which it was purchased, the consideration has wholly failed, although it may be of some value for another purpose.” This pointed and unambiguous language was employed, too, by the court in reference to the sale of a jack, sold as a sure foal-getter ; and it was pertinent to the case under review. No subsequent opinion of the court has overruled this declaration of law; nor has it ever been criticised, by that court. On the contrary, as late as 76 Mo. 455, in Compton v. Parsons, the same principle is recognized and announced, in no mistakable terms. The court, through Sherwood, J., say: “If the water-drawer ’ was worthless for the purpose for which it was purchased, this was a valid defence, as showing an entire failure of consideration, and this, whether defendant returned or offered to return the machine or not, or failed to notify plaintiff of its worthlessness,” citing in support Murphy v. Gay (37 Mo. 535), in which the case of Barr v. Baker (supra), is cited approvingly, clearly showing that the rule of law therein announced
Since the opinion in Barr v. Baker (supra), I undertake to say the rule in question has been almost universally recognized in practice, by bar and bench, in this state. Whether a wise or unwise one, this court, under the constitutional injunction laid upon it, has no right nor power to directly or indirectly overrule it, as is the inevitable result of the opinion of Hall, J., herein. Viewed with regard to the provisions of our practice,act I hold that the conclusion of the Supreme Court is logical and sensible. I may concede that text-writers and courts, of high authority, hold that where a vendee purchases a specific article, taking a general warranty as to quality from the vendor, and the article passes to the vendee, the latter cannot rescind, nor maintain the defence to the action to recover the purchase price of a total failure of consideration, provided the article warranted be of any value whatever for any purpose. I take it, in this state at least, that this rule applies to the instance where a purchaser simply buys a specific article with warranty, in a general way, and not to the instance where he buys a specific article for a specific purpose, warranted by the-vendor to be suited for such purpose.
I am persuaded that had the statute of 3835, in force at the time when Judges Nap ton, Tompkins, and Scott held their learned discussions of this question in the cases of Ferguson v. Huston 96 Mo.). and Wade v. Scott (7 Mo.), contained the provisions of subsequent statutes, respecting the right of a defendant, when sued on a note, | to plead the failure of consideration, in whole or in part, they would have found little embarrassment in the solution of the vexed questions considered. It will be observed from the opinions of Judges Tompkins and Napton, in the former case, that they concurred in the conclusion that the provision in the statute of 3835, authorizing such defence, applied only to actions instituted in justices’ courts, and, conse
It was after the enactment of the statute of 1845-that McBride, J., wrote the opinion in Barr v. Baker, concurred in by both Judges Napton and Scott, who wrote opinions in the cases, supra, in 6 and 7 Mo. This statute, authorizing the defence of a failure of consideration, means exactly what it says. When the action is founded on a note, as in this case, the defendant may avoid its payment in toto, if the consideration has failed, or to the extent of the failure of such consideration. What difference can it make, under such a statute, that the thing which constituted the consideration was-warranted to be what it was represented to be, and what it, in fact, was not? The consideration of the note is the contract of sale, the thing bought on the faith of the warranty. That was the inducement to, and sole consideration of, the contract. This being true, it must logically and unavoidably follow that, when the thing is not what it was sold for, and is worthless for such purpose, the consideration has failed; and the language of the statute applies, whether the sale be by warranty, expressed or implied, or procured through fraud. The result is the same to the purchaser. It would, in my opinion, be a refinement too subtle to meet the liberal
II. As this case is to' be reversed on other grounds, I suggest that the pleader reform the prayer of the first and second counts, by omitting that portion respecting a recoupment, so they may stand purely as counter-claims. As the third count of the answer is based solely on the false and fraudulent representations of the plaintiff in making the sale, and contains the only direct plea of failure of consideration, there was not the proper foundation laid for the second instruction given on behalf of defendants based on the breach of warranty. If the defendant, on further trial, would avail himself of the failure of consideration arising on the sale with warranty, he may amend by adding another count based on such warranty.
III. In the eighth instruction, given by the court on behalf of plaintiff, the jury were instructed that :
“ If they find that said animals were sold with warranty, or that Weldon was deceived, as hereinafter stated, by false representations of Christ, then Weldon’s measure of damages is the difference in value of said animals, in the condition as represented or warranted by Christ for the purpose for which Weldon purchased them, and their condition as shown by the evidence. And, in making up their verdict, the jury should allow this difference, if they find, from the evidence, that said animals were sold with warranty, or that Christ made
If this instruction be correct, then the declarations of law made in the two instructions given on the part of the defendants are incorrect, unless it can be maintained that in it the plaintiff intended to assert, and the court to declare, that there was an entire failure of consideration, if the animals were worthless for the purpose for which they were bought. If so, then the plaintiff is precluded from complaining here of an error of the circuit court in giving those declarations for the defendants, as he adopted the error in his own declaration. However viewed, the instruction is so ambiguous in this respect that it should not be given again, as it is in apparent conflict with those given for defendants, in so far as a total failure of consideration is predicable of the worthlessness of the article sold for the purpose for which it was bought.
IT. I concur in reversing the judgment of the circuit court, and remanding the cause, for the error committed in striking out part of the reply, noticed in the opinion of Hall, J., and in giving the instruction numbered two, on behalf of defendants, predicated upon the warranty, as it was not within the allegations of the third count of the answer.
T. Even conceding that the instruction numbered thirteen, asked by plaintiff and refused by the court, announced, as contended by Hall, J., in his opinion, a correct proposition of law, I do not perceive any reversible error in this action of the trial court, inasmuch as the jury found, by the verdict, that the animals were worthless for the purpose for which they were sold. The giving or refusing of the instruction could not have changed the result of the verdict, as it carries with it the conclusion that the jury found the horse and jack were impotent.