43 Mo. App. 504 | Mo. Ct. App. | 1891
This was a suit on a promissory note executed by David Ball, who has since died, to plaintiff, for the sum of $72.50, and due twelve months after the date thereof. Defendant’s answer is as follows :
I. It will be perceived that the answer of the defendant puts the defense on two grounds, first, a breach of the warranty therein alleged, and, second,, the negligent erection of the mill by the plaintiff. The principal complaint here made by the appealing defendant arises out of the action of the circuit court in giving instructions, numbered 1 and 2, for plaintiff, and in refusing numbers 7 and 8 asked by defendant.
The first instruction given for the plaintiff told the .jury that the execution' of the note being admitted they should find for the plaintiff the amount and interest thereon, unless they further find that at the date of the execution of the note the plaintiff warranted the mill or its manner of construction and putting up, and that the same was blown down by reason of the defective erection or manner of putting up the same. The defendant contends this instruction is erroneous, first, because it required the jury to find for plaintiff unless it found plaintiff warranted the mill and that the same was blown down by reason' of defective erection, and, second, because the court did not define the word, warranted, or tell them what facts would constitute a warranty. As to the first of these objections, it is sufficient to say that, if the theory which it presented for the consideration of the jury was erroneous, a like error is to be found in the first instruction asked by the defendant, and given by the court. Communis error facitjus.
And as to the second ground of objection, it maybe remarked that in the sales of personal property a warranty has been defined to be an express or implied statement of something which a party undertakes shall
II. The second instruction given for the plaintiff told the jury that “ if the mill was erected with reasonable care and skill, sufficiently strong to stand all ordinary storms, and that the same was blown down by an extraordinary storm or by reason of water standing around where said mill was erected, or by reason of defective posts furnished by defendant without fault on part of plaintiff’s agent, the jury will find for plaintiff.” The defendant contends that the instruction is based upon facts of which there is no evidence. Upon a close examination of the record we have been unable to find the slightest evidence to warrant the assumption of the instruction that at the time the mill blew down that water was standing around where it -was erected, or that defective posts were furnished by defendant for the erection of the mill. The evidence showed the ground where the mill was erected was overflowed about the middle of June, and the storm which blew down the mill occurred on the ninth day of August. The only evidence as to the condition of the ground at the time the mill fell down was that, “ it was hard and dry.” The posts on which the mill was erected pulled loose
Though no such question has been made here, we are inclined to think that, under the code as it now exists in this state, the facts relied on in the instruction should have been set forth in the replication. The plaintiff by merely denying the allegations of the defendant’s answer could only try such questions of fact as were necessary to sustain the defendant’s case. The rule is that, whenever a defendant intends to rest his defense upon any fact which is not included in the allegations necessary to the support of the plaintiff’s case, he must set it out according to the statute in ordinary and concise language, else he wall be precluded from giving evidence of it upon the trial. An affirmative defense should be clearly and distinctly set forth.
III. As to the seventh instruction, which told the jury to constitute a warranty it was not necessary that the word, “warranty,” or any particular word should be used in the contract, but if they believed from the evidence that expressions were used by plaintiff from which defendant had reasonable ground to suppose a ivarranty toas intended' from the plaintiff and that he did so suppose, and in making the purchase relied ujDon such supposed warranty, the jury should find there' was a warranty in fact, — this instruction is not quite accurate. It does not meet the requirements of the rule laid down by the supreme court in Carter v. Black, 46 Mo. 385, and in Barker v. Scudder, 56 Mo. 272. With the correction that a perusal" of these cases will suggest, the instruction would be well enough.
IY. The defendant’s eighth instruction, which was-refused, which told the jury that no private restrictions upon an agent’s authority unknown to the purchaser can affect such purchaser, etc., should have been given. It asserted a correct rule in respect to the power of agents in such cases. Brownfield v. Ins. Co., 26 Mo. App. 398; Hayner v. Churchill, 29 Mo. App. 676. It results from these observations that the judgment will be> reversed and the cause remanded.