Christian & Brough Co. v. Goodman, No. 23409

No. 23409 | Miss. | Jun 18, 1923

Cook, J.,

delivered the opinion of the court.

The appellant, Christian & Brough Company, instituted suit in the circuit court of Sharkey county against Goodman & Garrett, appellee, and from a judgment in favor of appellee, this appeal was prosecuted. The declaration was in two counts, the first count being based on a series of promissory notes executed by appellee for the balance of the purchase price of one detrae tractor purchased by appellee from appellant, while the second was for the aggregate cost of certain repairs made to the tractor. Upon a proper affidavit a writ of seizure was issued and levied on the tractor by the sheriff. To the first count of the declaration the defendant filed two special pleas. The first of these pleas averred that the defendant did not owe the plaintiff any sum whatever for the tractor in question, for the reason that the said tractor was bought for general farm purposes, and the plaintiff knew the purposes for which said tractor was bought, and that the tractor was Wholly unfit and inadequate for the purposes for which it was bought, and consequently there was a total failure of consideration. The second special plea averred that the defendant did not owe the plaintiff any sum whatever, for the reason that the plaintiff knew that the tractor was to be used for general farming and agricultural purposes, such as a, proper tractor could and would do, and that the said plaintiff, knowing the purposes for which the said tractor was to be used, warranted the soundness and mechanical condition of the said tractor to be perfect, and the condition of the tractor to be such as to fill the requirements for which it was bought, when in truth and in fact the said tractor was mechanically imperfect, and unfitted for the purposes for which it was sold, and that by reason of the said breach of the said warranty the said defendant is entitled to recoup the amount of six hundred dollars, being the amount paid upon said tractor, and, in addition thereto the sum of-dollars, the purchase price of four mules that had to be bought for the said defendants to take the place and do the work for which said tractor was bought, and that the defendant was entitled to credit said sum against any right of recovery the plaintiffs might have against the said defendant, because the said damage to the said defendant grew out of and was a part of the original contract and purchase of the said tractor and the warranty of the said tractor by the plaintiff. A special plea to the second count of the declaration averred that defendant did not owe any sum under this count, for the reason that the said tractor was shipped to plaintiff at the sole request of said plaintiff; that the defendants instructed the plaintiff to make no repairs on the said tractor, and that, if any repairs were made thereto, it must be done solely at the expense of plaintiff, and that defendant would not pay for any repairs that might be made on the said tractor; that, if the repairs as’charged in said count of the declaration were made on the tractor, it was done voluntarily by the said plaintiff, and without the authority or order of the said defendants.

The testimony as to whether the warranty was made and as to the mechanical condition of the tractor when delivered was conflicting.. Witnesses for the defendant testified that the plaintiff sold the tractor in question for general farm purposes, and knew at the time the sale was made •that said tractor was to be so used; that plaintiff warranted and guaranteed that it was mechanically perfect, and that it would do the work for which it was sold; that it was mechanically imperfect, and unfit and unsuitable for the purposes for which it was sold,-and that it would not pull heavy disc plows, the particular purpose for which it was purchased. The testimony further shows that the tractor was éold and delivered to the defendant in the latter part of September, 1920; that defendant paid five hundred dollars on the purchase price when it was delivered, and on January 1st thereafter executed a series of notes aggregating one thousand dollars for the balance of the purchase price; that on February 2, 1921, the first one of these notes was paid; that some time during the month of October, 1920, the defendant used the tractor for about ten hours in sawing wood; that it was then stored under a shed, where it remained until some time in February, 1921, when the defendant attempted to use it for the purpose of plowing, but found the engine in such condition that it could not be used; that defendant at once telephoned plaintiff, and a mechanic was sent to inspect it; that on the advice of this mechanic the tractor was shipped to plaintiff’s shop, and there repaired, and then returned to defendant; that defendant again attempted to use the tractor for the purpose of plowing, but, found it still unsatisfactory; that notice of this fact was at once given plaintiff, and the mechanic again was sent to inspect the tractor; that the mechanic made some minor repairs, and left; that defendant did not attempt to nse the tractor again until some time during the spring, when he used it in pulling cutting harrows; that this was light work, and the tractor did this work successfully ; that defendant continued to have trouble with the tractor all during the farming season of 1921, and that it never gave satisfactory or adequate service in the use for which it was purchased. It further appears from the testimony that on March 25, 1921, the defendant addressed a letter to plaintiff asking for an extension of the time of payment of the notes, and again on December 16,. 1921, after repeated demands for payment of the notes, the defendant wrote plaintiff a letter saying:

“This is to advise that Goodman & Garrett will gladly give the tractor back for their notes on the tractor as it seems they will not be able to do anything towards meeting them this season. The account you have for repairs on this tractor, we do not consider we owe as the tractor was not in propor condition when delivered to us and never has given any satisfaction.”

Upon this testimony it is clear that there was an acceptance of the tractor by the appellee which cannot be repudiated, and it was incumbent upon the appellee, having accepted the tractor, to show that it was sold under a guaranty that it would do certain specified work, and that the guaranty had been breached. • The testimony as to whether this guaranty was made is in sharp conflict, and this- question was properly submitted to the jury for decision, but the instructions submitting this question to the jury did riot give them any proper guide as to the measure of damages which the appellee was entitled to recoup in consequence of the breach of guaranty in the event they should find that the tractor was sold under this guaranty, and that it had been breached. If the appellant sold the tractor under a guaranty that it was mechanically perfect, and would do certain specified work, it is bound, notwithstanding the acceptance of the tractor by appellee, to make such guaranty good, and the appellee would have the right, in an action for the balance of the purchase money, to recoup the damages suffered in consequence of the breach of guaranty. In such case, as held in Stillwell Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513, the measure of damages is the difference between the value of the tractor as it in fact is and its value as it would have been as guaranteed. The appellee may reduce the purchase price by such difference in value, but the burden is upon him to show this difference. Bowers v. Music Co., 114 Miss. 25, 74 So. 774.

As items of damage to be recouped against the purchase price of the tractor, evidence was offered that, on account of the breach of the guaranty, appellee was forced to purchase disc plows at a cost of two hundred and thirty dollars and four mules at a cost of one thousand three hundred dollars. The court excluded the testimony in regard to the purchase of the mules, but admitted the testimony in reference to the purchase of the plows, and also refused to instruct the jury to disregard this testimony, and make' no deduction for the cost of the plows. Under the pleadings and facts of this case, this testimony was inadmissible, and it was error to refuse the requested instruction.

Reversed and remanded.