J. E. Hayner & Co. v. Churchill, 29 Mo. App. 676

J. E. Hayner & Co. v. Churchill

29 Mo. App. 676 | Mo. Ct. App. | 1888

Ennis on, J.

This action is based on a promissory note. It was begun before^ a justice of the peace, appealed to the circuit court, where defendants prevailed, and plaintiffs bring the case here. The note was given in part payment for a mowing and reaping machine sold by plaintiffs’ agent with a warranty made by the agent, as defendants claim, that it would work well as a reaper and mower. *

Plaintiffs’ theory of the case was presented by the *682evidence of tlieir agent, who testified, in substance, that he sold the defendants that machine in July, 1883, with permission to try it during that harvest, and if it proved satisfactory they could come in, in September, and settle for it; that they did come in and settle by paying part cash and giving two notes for the balance, one of which is the subject of the present controversy; that no complaint was made of the machine except that the “knotter” was too weak; that they took the machine for trial as agreed, and after trying and testing it during that harvest, they were satisfied with it in every particular save that the “knotter” was too weak ; that he then promised to get them, free of charge, an improved “knotter” next season if there should be one; that he got the “knotter ” and put it on the machine.

The court refused all of plaintiffs’ instructions, save a formal one as to the burden being on defendants to establish their defence ; and gave one instruction for defendants which omitted any reference to plaintiffs’ theory of the case. This was error for which the judgment must be reversed. In Fitzgerald v. Hayward, 50 Mo. 516, it is said that he who asks an instruction on the whole case, must not frame it so as to exclude from the consideration of the jury the points raised by the evidence of his adversary. It has been frequently said by our Supreme Court that when the instructions taken together present the issues tendered by either side, it will suffice ; but here only one instruction was given ;: as purporting to cover the case, and yet left out of view plaintiffs’ theory. Lafayette Co. Bank v. Metcalf ante, p. 384.

As to the warranty by the agent and his authority to give it, “the general rule is, as to all contracts, including sales, that the agent is authorized to do whatever is usual to carry out the object of his agency, and it is a question for the jury to determine what is usual. If in the sale of the goods confided to him it is usual in the market to give a warranty, the agent may give that *683warranty in order to effect a sale.” Benjamin on Sales,, sec. 624. No private restrictions upon the agent’s authority, unknown to the purchaser, can affect such purchaser. If, therefore, in this case, it can be shown to the satisfaction of the jury that it was usual to give a warranty of such machines, • then it was within the agent’s authority to do so ; unless it can be shown that such authority was in fact restricted by plaintiffs, and such restriction was known to defendants. The mere fact that the agent told defendants that his authority to allow them to try the machine was restricted .to two days’ trial, would not be sufficient to show that he had no authority to warrant it to be a capable machine for reaping and mowing.

If there was an express warranty by the agent, the extent of that warranty will govern and measure plaintiffs’ liability to the exclusion of any implied warranty ;. but if, as is claimed by the agent, he made no warranty,, yet if the machine was worthless for- the purpose for which it was purchased and is of no value for any purpose,, this may be shown as total failure of the consideration. Brown v. Weldon, 27 Mo. App. 251; Kerr v. Haymaker, 20 Mo. App. 350, and cases cited. This question is fully discussed in Brown v. Weldon, where it is shown that, when the Supreme Court has used the expression in substance, that if the article was worthless for the purpose for which it was purchased, it would be a valid defence as showing an entire failure of consideration without a return or offer to return the property, it was speaking in relation to articles of no value for any other purpose. It is there said that if there is no rescission by a return or offer to return the property, the vendee will only be allowed damages in diminution of the price. The measure of such damage is the difference between the value of the chattel if it had fulfilled the purpose for which it was sold, i. e., the contract price and its actual value. If, as it may be claimed in this case, the vendeehas already paid as much or more than the actual value of the machine, plaintiffs must fail in their action.

*684Another theory of the case which presents itself, is disposed of by the case of Courtney v. Boswell, 65 Mo. 196, where it is held that, although the vendees may have paid money on the machine after discovering its defects, yet if they made such payments, and are induced to retain it by promises on the part of the vendor that he will make it fulfill the warranty, or the purpose for which it was purchased, it will not affect the defence of the vendee, if such promise is not complied with.

The judgment is reversed and the cause is remanded.

All concur.