26 Mo. App. 274 | Mo. Ct. App. | 1887
Lead Opinion
delivered the opinion of the court.
This action was brought before a justice of the peace to recover the purchase price of a steam engine sold by the plaintiffs to the defendant. On a trial de novo, in the circuit court, the plaintiffs had a verdict and judgment for two hundred dollars, the sum being fifty dollars less than the agreed purchase price, from which judgment the defendant prosecutes this appeal. The plaintiffs were dealers in agricultural implements at -Carrollton, Illinois, and the defendant was engaged in business, in partnership with Mr. Mummert, at East Caron&elet, Illinois. He and Mr. Mummert desired the engine for use in a small feed mill, which they were then erecting at East Carondelet. Immediately after the transaction in controversy, the defendant and Mummert ■dissolved partnership, Mummert selling out his interest in the firm to the defendant. The. engine was shipped by the plaintiffs to the defendant, i'n compliance with the following order:
“St. Louis, Mo., November 9, 1885.
Messrs. .John B. Qalhoun & Go.:
“Gentlemen: — Please prepare and ship at your -earliest convenience, the following goods, viz: .
“1 Ten-horse large engine, Harr, Scott & Co.’s*276 make, now at Carrollton, for two hundred and fifty dollars, said engine guaranteed to be in first-class running order, according to the letter of Oswald Jackson, Car-rollton; Ill. Terms, cash.
“No agreements, conditions, or stipulations, verbal or otherwise, save those mentioned, will be recognized.
“Yours respectfully,
“ Paule & MuMmért,
The letter of Oswald Jackson, referred to in the-above letter, which, it would seem, had previously been shown by the plaintiffs to Paule and Mummert, was as follows:
“ Carrolltoh, III., Nov. 4, 1885.
“ John R. Calhoun &,Co. :
“Dear Sirs : — Mr. Geo. Parr has just now handed me your letter referring to his Garr-Scott engine on wood wheels. I put Mr. Parr’s engine in thorough repair last fall, tested it to one hundred and fifty pounds, cold water pressure, which it stood — new piston ring— re-fixed slide valve and seat, etc.
“The engine, to the best of my knowledge and belief, at the present time, is in perfect repair.. Mr. Parr assures me he has worked it but one day since I repaired it; it is a very powerful engine for its size, even more than one would suppose.
“ Yours respectfully,
“Oswald JacksoN.”
“The above engine referred to is ten-horse power.”'
The engine was shipped by the plaintiffs, on November 11, in pursuance of the above letter, by rail, to East Carondelet, and a duplicate of a bill of lading was forwarded to the defendant by mail. When the engine arrived on the car at East Carondelet, the defendant, Paule, inspected it, and had it inspected by Mr. Williams, a millwright, and wrote to the plaintiffs to the effect that it was not the engine which he had contracted lor, and declined to receive it. Some negotiations, then
“Railroad company wants that engine out of the •way at East Carondelet. What shall I do with it? Please send me word at the earliest time.”
Thereafter the railroad company took the engine to its warehouse, at East St. -Louis, Illinois, where it remained on storage until the day of the trial. No part ■of the agreed purchase price was ever paid or tendered by the defendant.
The contract, under which the engine was sold, must be construed to have embodied a special warranty, on the.part of the plaintiffs, that it was “ in first-class Tunning order, according to the letter of Oswald Jackson.” The statements in the letter of Oswald Jackson, thus imported into the contract, -were to the effect that the engine was “in thorough repair,” ‘.‘in perfect repair,” tested to a cold water test of one hundred and fifty pounds pressure, “a powerful engine for its size,” .and of “ ten-horse power.”
Testimony, drawn from the plaintiffs’ witnesses, on -cross-examination, tended to show that the engine was not in perfect repair; that some essential parts of it were missing, and that other parts were not in good condition, though it was in a condition to be operated. These witnesses of the plaintiffs, however, while admitting these facts, expressed opinions that the engine was in fair condition and good condition. Testimony adduced by the defendant was to the effect that it was in a very bad condition ; that it was not a ten-horse power •engine; that it was in such a condition that it would
This testimony, as to the bad condition of the-engine, drawn from the plaintiffs’ own -witnesses, was greatly strengthened by the testimony of the defendant’s witnesses, who inspected the engine. They were all expert machinists. One of them took off the cylinder head and found that the cylinder could not be re-bored ; the crown sheet of the fire box was broken, and very poorly patched, and showed leakage; the door frame was broken, and a couple of bolts were missing j
Another witness for the defendant, who had been boiler inspector of the city of St. Louis for eight years, having examined the engine, testified: “The boiler was all burnt, out, and a country patch .put on it; the cylinder was so weak that it could not be bored to stand a pressure, and at its opening the metal was only one-eighth of an inch thick ; the condition of the boiler alone was sufficient to condemn the engine ; the supply pump was a total wreck; it, would have to be removed and a bran new one put in ; the engine was in no running order; the grate bars were burnt; the fire frame was all wrecked and broken-; the safety valve was cracked ; there was no water gauge on it; the frame was pretty much rotten, and some spokes were missing from the wheels ; there Avas no steam gauge ; the main frame of the engine was cracked, and a band puff around it. I would not allow fire to be started in her, for fear of an explosion.”
Another expert machinist, testifying for the defendant, said: “I examined the boiler, and found, on opening the fire door, that the grate b,ars in the center of the furnace were burnt out. I next examined the fire box and found a soft patch secured by “tafíly.” I
Mr. Williams, the millwright already spoken of, who examined it for the defendant on a flat car at East Oarondelet, said : “I found it in a generally bad condition ; the frame around the fire box was cracked. The grate bars were burnt; there was a patch on the crown sheet, put on by a stud bolt, and not in a workmanlike manner; the supply pump was in a bad condition; it was broken. I noticed a bulge on the after end of the boiler, and there was a water and a steam gauge missing; the running gear (wheels and frame) were rotten and weather beaten.” This witness also testified, that he advised Mr. Paule that the engine was not in a fit condition to run ; that he then saw Mr. Calhoun, one of the plaintiffs, and told him its condition ; that Mr. Calhoun said if that was so he would take it back. No attempt was made to rebut this evidence, offered by the defendant, as to the bad condition of the engine.
There was no evidence in the case, tending to show
In determining the effect to be given to this evidence, it is necessary to consider on whom the burden of proof in such an action lies. ' Counsel fot the plaintiffs argue, on the authority of Branson v. Turner (77 Mo. 489, 495), that the burden of prooí lay on the defendant. It is, indeed, said in that case, that an instruction was faulty in declaring, in effect, that the burden rested on the plaintiff to prove that the warranty was good, and Mr. Commissioner Philips adds: “When he showed the sale and delivery to the defendant, if the defendant claimed a failure of consideration, total or partial, consequent upon a breach of the warranty, he held the laboring oar as to this issue. ’ ’ In that case, the property, which had been sold and delivered, had been kept by the vendee for two weeks before he. undertook to return it. The opinion fails to draw the well known distinction between a mere delivery and' an acceptance; and it must be presumed that the word, “ delivery,” was used in the language of the learned judge in the sense of acceptance.
Such being the law, I confess myself unable to see that the plaintiff adduced any evidence which, taken most strongly for him, would have authorized a jury to find that he had complied with the terms of the guaranty, upon which the defendant had agreed to accept the engine. It was to be “in first-class running order, according to the letter of Oswald Jackson;” and Mr. Jackson, being an expert machinist, and having examined the machine, tested it, and repaired it, certified that, to the best of his knowledge and belief, at the present time, it was “in perfect repair.” The expres
The defendant requested, and the court refused, the following instructions:
“1. The court instructs that, if the plaintiff failed ■ to deliver to the defendant, or his agent, a Gfarr, Scott & Company engine, of ten-horse power, and in first-class' running order, then the defendant was not bound to ac- ■ ■cept the engine tendered, and, if the defendant did refuse to accept the engine so tendered, not being of such-description, and notified the plaintiff of his non-acceptance of the engine, tendered within a reasonable time after such tender, then the plaintiff can not recover.”
“2. The court declares the law to be, that, under the contract read in evidence, the defendant was not bound to accept the engine called for by said contract, ■ unless the plaintiff delivered the same to the defendant or his agent in first-class running order. And unless the plaintiff did deliver such engine, in such condition, to the defendant or his agent, the defendant was not bound to accept the same, and, if the defendant notified the plaintiff of his non-acceptance of the engine, within a reasonable time after he discovered that said engine was*285 ■not in tlie condition of first-class running order, then the plaintiff; can not recover. ”
“ 3. The court declares the law to he, that the burden of proof, in this case, is on the plaintiff, to show, by a preponderance of evidence, that he delivered the engine, mentioned in the contract read in evidence, to the defendant, or his agent, in first-class running order; and, if the plaintiff failed to deliver said engine, in such condition, and the defendant refused to accept said engine, and gave the plaintiff notice of such refusal, within a reasonable time thereafter — that is, after the plaintiff tendered said engine, then the plaintiff is not entitled to recover.”
These instructions, except the third, embody, substantially, the same conception of the law of the case, and that adds to this conception the element that the burden of proof in such a case is upon the plaintiff, which, as we have already shown, is the law. The refusal of these instructions, in a case tried by the court sitting as a jury, and the failure to give any instructions embodying the same propositions of law, indicate, especially in the state of the evidence in this case, that the case was not tried upon the proper applicatory principles of law. The learned judge seems to have overlooked, as courts have frequently done, the essential distinction between the delivery of persona] property, upon a sale, and the acceptance of it by the vendee. A delivery, such as will satisfy the statute of frauds, and transfer the title from the vendor to the vendee, is one thing, and the acceptance of it, such as will estop the vendee from returning it to the vendor, is quite a different thing. Simpson v. Krumdick, 28 Minn. 352, 355. There may be an acceptance without delivery, as where the purchaser has inspected the goods in the custody of the seller, and has agreed to buy the particular goods. There may, also, be a delivery without an acceptance as where the purchaser has never seen the goods, but has ordered goods of a particular description, quantity,
The defendant, therefore, had the right, in the state •of the law, either to accept the engine, pay for it, according to the contract, and then sue the plaintiffs for the
The judgment must accordingly be reversed and the cause remanded.
Rehearing
delivered the opinion of the court on the motion for re-hearing.
As long as the contract remains executory, the ven-dee has the right to reject the goods, if, when he has an opportunity of inspecting them, he finds that they do not answer the representations on which he has agreed to purchase them. It is immaterial what those representations are called, whether conditions or warranties. If the goods are not what they are represented to him, whether in quantity or in quality, he has the right to reject them; and when he thus rejects them, he is not bound to return them at his own expense. In this respect there is no difference in principle between this case and the case of Landesman v. Gumersell (16 Mo. App. 459), where this court held that, where the vendor 'sends more goods than the vendee has ordered, the latter is under no obligation to inspect them, or to return them at his own expense. It is only where he accepts
There is nothing farther in the motion for re-hearing, which seems to call for special observations, and, with the concurrence of Rombauer, J., it is overruled.
Concurrence Opinion
delivered a separate opinion.
Lam not prepared to say that the plaintiffs in this case failed to offer substantial evidence, entitling them to go to the jury. Whether such evidence was sufficient to bring the engine tendered within the description of the engine sold, is a question of fact, and not of law, and being a question of fact, it is not the proper province of this court to solve it by analyzing the plaintiffs’ testimony, and comparing it with that of the defendant. In the other views taken in the foregoing opinion, relative to the burden of proof, and the correctness of the defendant’s instructions, I fully concur.