185 Mo. 375 | Mo. | 1904
Plaintiff sued in ejectment for a lot in the town of Elsberry. The lot had belonged to the defendant, who executed a deed of trust conveying it to a trustee to secure two notes for $250 each, payable to the plaintiff; when the notes became due, they were not paid, and the trustee sold the property under the terms of the deed of trust; the plaintiff became the purchaser at the trustee’s sale for $225, and receivéd the trustee’s deed therefor. Those facts, together with the fact that the rental value of the property was $5 or $6 a month, were shown by the plaintiff’s evidence at' the trial.
In answer to the plaintiff’s ejectment petition, the defendant filed a general denial, and an affirmative pleading in the nature of a bill in equity to redeem, which for convenient reference and for want of a more appropriate name, we will call a cross-bill, and which in substance was as follows:
After admitting the execution of the notes and the -deed of trust, the sale thereunder' and the purchase of the-lot by the plaintiff, it is averred that the defendant and one Smith purchased of plaintiff a grain threshing outfit, in payment of which the notes mentioned were given, together with a chattel mortgage on the machine purchased and the deed of trust on the lot in question to secure the notes. That the only purpose defendant and Smith had in making the purchase was to use the machine in threshing and separating wheat, oats, etc.; that the plaintiff knew that fact, and warranted it capable of doing that work satisfactorily, if properly operated, requiring only slight repairs in the woodwork at the top of the separator, which repairs the defendant undertook to make and afterwards •did make. That the plaintiff further represented that in the previous year he had threshed over 20,000 bush■qls of wheat with the machine, and if properly operated it was capable of threshing, cleaning and separating
That it was upon that warranty the purchase was made and the notes and deed of trust executed.
But that the machine “was wholly worthless for the purpose for which it was bought by defendant, and was wholly unfit and incapable of doing said work as a threshing machine; ’ ’ that plaintiff, although notified, refused to assist in starting the machine and refused to furnish the belts, pipes, wrenches, oil cans, etc., necessary to operate it; that defendant employed a skillful man to operate it, but he could not do so, and employed a machinist to repair it, but it was so worthless it was beyond repair; that after giving it a fair trial and finding it totally unfit for use, defendant notified the plaintiff thereof and solicited him to come and repair it but “he refused to take any action or steps in the matter;” that after ineffectual efforts to operate it, defendant again “notified the plaintiff of these conditions and offered to return said outfit, and that plaintiff refused to permit'him to do so and refused to receive said machine, and-.thereupon defendant abandoned the same and so notified plaintiff and has not had possession thereof since.” The pf&yer is that the ■court hear evidence and if it should find that the facts stated by defendant are true that the plaintiff be required to bring the notes and deed of trust into court to be cancelled and satisfied on the record and the title to the lot be reinvested in the defendant. But that if the court should find that defendant purchased the machine under the warranty mentioned and that whilst
On-the trial of the case made in the cross-bill the-evidence for the defendant was to the following effect::
Smith testified that he and defendant, hearing that plaintiff had a second-hand threshing outfit for sale,, and they intending to go into the business of threshing grain for farmers, went to see him about it. Plaintiff took them to a shed where the machine was and showed it to them. They noticed that it looked badly on the outside, but he said that that was owing to the fact that it had stood out one winter in the weather, but that it was all right inside. He said it had threshed 20,000 bushels of wheat the year previous, and he would guarantee it to do it again; that it would thresh as good as anybody’s machine. He left them at the shed and went off to milk his cows, they remained there twenty minutes, may be an hour, but made no very close examination. In their talk with the plaintiff at the shed they told him that they would go and look at the engine and if after looking*at it they concludéd to make the purchase they would drop him a card when they .went back to Elsberry and so notify him. The engine to run the machine was at that time running a sawmill at Whiteside’s place, and they went there to examine it, but when they got there the engine had steam on and ..they made very little examination of it. It was noon and the men were called off from work. They did not
When witness and defendant got the outfit they ■set it up at Whiteside’s farm to thresh his wheat. When ■they were ready to start the machine they sent word to the plaintiff by a negro to come and start it, but he never came; whether or not the negro delivered the message witness did not know. Witness and defendant then undertook to start it, witness to run the engine •and defendant the separator, but the. effort was very unsuccessful. “We fooled around there I don’t know how long, something like a week, threshing his crop,” which was about 1,000 bushels. Then they moved the machine over to Lucas’s farm and undertook to thresh his wheat and spent a week or more in that effort, then moved over to Wigginton’s place to thresh his wheat, but .all the while the thing got worse until- finally after using it for three or more weeks the separator went -■all to pieces, the whole outfit became entirely useless, -and they hauled it out near the road and sent word to the plaintiff that they had abandoned it and he could •come and get it. This message was sent by Mr. White-side who was going on his own business where he was likely to see the plaintiff, and was requested if he •should see him to give him this message. Neither witness nor defendant took any further concern about it -■and did not know whether the message was ever delivered.
The business in which this witness was engaged at the time of the trial was shoveling coal at coal chutes, though he said he had had “right smart experience running engines and operating threshing outfits.”
Witness and defendant began to operate the machine without overhauling it or making a close exam
The witness was of the opinion that the engine was; of no account for the purpose for which he and defendant bought it, but that “it could have been saved”by repairing. He was asked what it was worth as it was; he answered: “Well after repairing” — but was. interrupted to say what it. was worth as it was, and. he said it was worth nothing except as for old iron. Witness said they knew it was an old machine when they bought it, knew that it had been used at least five or six years, that the outfit new would have cost. $1,500 or $1,600 dollars.
The plaintiff was not engaged in the business of selling such machines, but owning such a machine and threshing grain for the farmers. He promised witness, and defendant that he would not go into that neigh
The testimony of defendant himself as a witness in his own behalf was in the main tó the same effect as Smith’s testimony. As to the examination made by them of the machine at the shed before purchasing, he said it was not thorough, “on account of dust and dirt over it and straw and chaff and stuff in it, which had not been cleaned out the fall before, I don’t suppose. Chaff ánd some straw1 and a dead hen in it. Smelling very bad, that’s one reasom.’we didn’t go into the machine until we could get it into the open air.” When they went to the sawmill to examine the engine, steam was up, but it was dinner time and he was not sure that actual sawing had commenced, but “may be they had run a line or two while we was there — don’t recollect” — did not make a very careful examination “took Mr. Crenshaw’s word for it and guarantees on it more than anything else.”
After they set the machine up at Whiteside’s they made a little run that evening and then sent word by the colored man to plaintiff to come and start it; whether or not the message was delivered they never knew; the messenger told witness either.that he had seen the plaintiff or had sent him word by some one. Plaintiff did not come, and they concluded “it was useless to go fooling around to hunt him up, ’ ’ • and therefore undertook themselves to put the machine to work — they did not overhaul it because they did not suppose it needed overhauling — witness was not an expert, but “can run a separator right smartly. Knew something about an engine, how to turn on water and turn it off and when it won’t pump I am done.” They depended on the colored man to adjust the machine; this colored man was hired as a feeder to the thresher. “We undertook to operate it and that’s what we agreed to do. Put the belts on, we had no tools, some old worthless wrenches that you couldn’t turn a tap with hardly,
The following is the witness’s general summing up of the operations: “We would run a few minutes and then a belt would tear up or something would go wrong, and we would stop and fool and finally the engine got to leaking and we couldn’t hold steam. Then the separator was all wrecked up in every region. How it happened, we kept on repairing it up and .repairing it up every day and' trying to run it, and finally we seen we couldn’t do anything with it, and finally it tore all to pieces, the vibrator fell down and we quit her after we went to Dan Lucas’s.” Witness referred to the time when Smith went to Elsberry and left steam up and the water “mighty scarce,” he said “we had to shut her down oh account of it and I told them to go and draw the fire out of the — thing if I may use such a word.”
Ed Waddington, a witness for defendant, saw the machine when it was on his place and when it was on Lucas’s place, did not see it at Whiteside’s. It was
Josiah- Whiteside, a witness for defendant, testified that with great difficulty they threshed about 1,000 bushels of wheat for him; they were a whole week doing it. Looker and Smith were doing the work with two negroes to help them. Witness got Hubbard and Monroe to help. “Some of them I term were men of experience. . . . Don’t know what was the matter— everything was the matter — first one thing then another — sometimes the engine was out of fix, and they got the engine to run a little and the separator was out of fix and then the straw stacker got out of fix.” The engine apparently worked well at first, the flues did not leak when it was first brought to his place, but they got to leaking afterwards. “The first work I saw the engine do after they got hold of it was moving on the road — moving into my place with it. It operated first rate; it was pulling the machinery right along; it was out on the road, that, is, moving from the upper end of my place down into the field, about half a mile. A good road all, except you had to go up a hill on one place, a pretty steep hill. Went right along up the hill. It appeared to be all right. ’ ’
Jap Tucker, a witness for defendant, saw the machine after it was moved over to Lucas’s; it was all in bad fix, worn out, engine was worth only the price of old iron.
David Hubbard for defendant testified that he had had considerable experience running engines and was called to go over to "Whiteside’s and doctor the machine, and he got out of a sick bed to go. He did not examine the engine closely, because the sun was hot and he was
, The foregoing is the substance of the defendant’s evidence in support of his cross-bill.
The evidence on the part of the plaintiff was to the effect that he sold the outfit to defendant and Smith as- old second-hand machinery, after full opportunity afforded them to examine it; that he not only did not warrant it, but expressly refused to so do; he did tell them that the year previous it had threshed over 18,000 bushels of wheat, which was the fact; they bought the machine on their own judgment; it was in fact capable, with some repairs and proper management, of doing good work, as much as might be expected of a machine of its known age and use; plaintiff never received a message from defendant and Smith or either of them to come and start the engine — never heard anything about their operation until he met Mr. Whiteside after
We deem it unnecessary to set out. the plaintiff’s evidence more fully because we think that the defendant, on his own evidence, was not entitled to any equitable relief; we will only say of the plaintiff’s evidence that both in quality and quantity it was fully as persuasive as that of the defendant.
The court rendered a decree in favor of defendant cancelling the notes and deed of trust and reinvesting the title to the lot in defendant. This decree is based on the following finding therein recited: “The court further .finds that said' notes were given without consideration, the said threshing outfit sold by plaintiff to defendant being worthless and of no value, and thereupon the notes hereinbefore described were without consideration and void.”
It is not even stated in the cross-bill that the machinery was of no value; failure of consideration, in whole or in part, is not the theory on which defendant builds his case. The cross-bill is founded on the alleged warranty and its breach; the warranty being that the machinery was sufficient for the particular purpose for which defendant and Smith bought it, that is, for threshing wheat, etc., and the breach charged being that it was worthless for that purpose.
According to the cross-bill there were two contracts, yi7,., that of the sale and that of the warranty. If we were dealing with these contracts in a suit at law, that is, if the plaintiff had sued at law for a judgment on his notes, the answer setting up the alleged warranty and* its breach would be no defense to the plaintiff’s suit, but it would be, if properly pleaded, a counterclaim. In such case the plaintiff would be entitled to a judgment on the notes, and the defendant, if his proof sustained him, would be entitled to recover on his counterclaim, and in the end the smaller judg
The law on that subject is thoroughly and ably discussed in Brown v. Weldon, 27 Mo. App. 251, wherein there are three opinions, one by each of the judges of that court, Hall, Ellison and Phillips, JJ., and the same case coming to this court, the different views of those judges were considered, and the correct rule of law deduced therefrom in an opinion by Bbace, J. [Brown v. Weldon, 99 Mo. 564.] We deem it sufficient to refer to that case for our opinion of the law of that subject.
The questions of whether there was a warranty and a breach thereof, and if so how much was the damage, are questions which ordinarily a party sought to be charged is entitled to have tried ■ by a jury. And whether a court of equity, in a case like this, could do more than restrain the plaintiff from foreclosing his deed of trust until those questions could be settled in the regular way, is itself a question. There is no doubt about the general proposition that a court of equity having jurisdiction of a case for any cause may, to avoid circuity of action, proceed to try all the questions in it, whether legal or equitable. But the application of that rule is to some extent within the discretion of the chancellor. Where the sole ground of equity jurisdic
There is no necessity for deciding those questions now, owing to the view we take of the evidence, but they are suggested' to show that if defendant has any standing at all in a court of equity it is on at least debatable ground.
Let us come now to the facts of the case as shown by the defendant’s pleading and proof. The cross-bill, which is skillfully drawn, does not say that the machinery was worthless when defendant and Smith bought it; it says that they bought it for a particular purpose; that plaintiff knew for what purpose they were buying it, and warranted it good for that purpose, but that it was entirely worthless for that purpose, and it is argued that, therefore, the defendant was absolved from all obligation to pay the notes given for the purchase price. But that is not the law. As was shown in the opinion of this court in Brown v. Weldon, above referred to, though the machine were worthless for that purpose, yet, if it had a value for any purpose, the defendant could not retain it and refuse to pay his notes on the theory of a total failure of consideration. And
But the defendant’s proof does not sustain even the qualified statement of the cross-bill. It does show that at the end of three weeks, after the machinery had been subjected to the usage they gave it, it was unfit for use as a thr.esher, and until it should be repaired was of no use for any purpose and of no value except the price of old iron. The chancellor measured its value at that stage and founded his déecree on that estimate.
Referring again to the allegations in the cross-bill, we note that it is not stated therein that the plaintiff ■warranted unconditionally that the machine.would do the work intended, but stated a condition, which perhaps would have been implied any way, but which nevertheless was expressed, that the machine would do the work “if properly operated.” It is just on that point that the defendant’s evidence exposes the weak: ness óf his case.
We are satisfied from the defendant’s own evidence that this threshing outfit broke down from the abuse it received in careless or unskillful operation. At the time defendant and Smith took possession of the engine it was furnishing power to a sawmill, of what size is not stated, and, so far as the evidence shows, it was doing its work well. The first'work it did for defendant and Smith was to furnish the power necessary to move itself and draw the rest of the machinery along the road and up a rather steep hill. It did that work well. That required more power than to run the thresher. Defendant himself said and .one of his witnesses said that the engine worked well at first.
When they went to look at the separator at the shed, before purchasing, they were told that it had been
Both he and Smith testified that it was the agreement with plaintiff that when they got ready to start the machine they were to notify him and he was to come and start it going and was to furnish belts, wrenches, oil cans, etc. - If defendant and Smith were competent to set the machine up .and start it, there was no use in engaging the plaintiff to do that for them; if they were not competent, they were to blame for attempting to do it, even if plaintiff had failed to come after being notified. The evidence on the point of notification was that they told a negro to go and tell him, and they afterwards heard the negro say either that he had told him or that he had told some one else to tell him,- they were not certain which it was.
As soon as they started the machine, on the first revolution, they discovered that a cog was broken. If the machine was warranted to be in good order and' there was a broken cog, that was a breach of the warranty to that extent, and the measure of damages was what it would cost to repair the broken cog, and the delay of the work while the repair was being made. But they were not justified in driving the machine on with a broken cog. Nothing but ignorance can take such an act out of the category of carelessness. It was also an indication of ignorance or carelessness that they had been trying to thresh wheat for an hour before they discovered that there was an oats riddle in the machine. Defendant testified that he had seen a man thresh wheat with an oats riddle; that may be, but it is some
They testified that the plaintiff had agreed to furnish good belts and tools at the starting, but failed to do so, and they had to go on with belts of insufficient strength and with not even a wrench that would turn a nut and not an oil can with which to apply oil to the machine. If the furnishing of those things was a part of the plaintiff’s obligation, and if he failed to furnish them, then he was liable for that breach of his obligation, but the measure of the damages therefor is what it would have cost the defendant to buy the articles, and the delay of the work, but it did not justify the defendant and Smith in attempting to run the engine without even the means to apply oil to it or a wrench to tighten a bolt and charge the consequences to the plaintiff.
Hubbard was the only witness introduced by defendant who appeared to be a machinist. He said that the last time he saw the engine he was passing by and heard it pounding at a distance of three hundred yards. He stopped and looked at it. The water was low in the boiler and it was leaking water and steam; the plates were sprung, and Smith, the engineer, was gone to town to buy tools. He said that the principal cause of an engine pounding is that it is not adjusted, that a new engine would pound as badly if not properly adjusted. He also said that to run an engine in that way would injure it. He said that whilst the engine as it was when he saw it was of no use and no value except the price of old iron, yet it could have been repaired at q cost of $150 or $200, and then would have been worth $800 or $1,000.
The defendant’s proof failed to sustain the case set out in his cross-bill; from his own. showing it is reasonable to conclude that the breakdown of the machinery was the result of unskillfulness or carelessness in
The judgment is reversed, and the cause remanded to the circuit court with directions to enter a decree for plaintiff dismissing defendant’s cross-bill and judgment for plaintiff, in his cause of action for possession of the lot in question, with nominal damages and nominal monthly rents. ■