159 Mo. App. 274 | Mo. Ct. App. | 1911
This action was instituted to recover a judgment on two promissory notes. The defendants prevailed in the trial court.
The notes, and one other, were given as part of the purchase price of a machine known as a Roll Husker Shredder. The other note was paid by de
That part of the warranty to which we need refer was that the machine was to be of good material and “to do as good work under same conditions as any made in the United States of equal size,” etc. That if the machine failed, the purchasers were to give notice stating what parts, “and if the machinery cannot be made to fill the warranty, the part that fails is to be returned by the purchaser to the place where received.”
In view of the verdict being for defendants, we will assume as established fact that the machine was practically a total failure and that there was therefore a breach of warranty in that respect. The plaintiff seeks to avoid the warranty on the ground of waiver which it contends arose through defendants testing the machine and failing to return it. And it likewise seeks to estop defendants from recovery on the note paid by them on the ground of its being voluntarily paid in recognition of the contract.
It was shown that the machine was bought the 25th of September, 1906; that shortly afterwards it was received by defendants and that from the start it would not work satisfactorily. Defendants complained several times and plaintiff’s agent came several times to remedy the trouble. He took out pieces and put others in their place. But it is conceded that defendants never returned the machine as a whole, nor any of its parts, and this is the chief ground for what may be called a double contention by plaintiff: first, that the warranty was waived; and that by failing to rescind and return, no defense exists under the answer, which does not seek to recover damages by standing on the contract, and keeping the prop
The payment of the first note did not estop defendants in the defense they make, for the reason that they were induced to pay and to keep the machine for further trial, by the request of plaintiff and its promise to perfect it. [Osborne v. Henry, 70 Mo. App. 19, and cases cited.]
Plaintiff asked no instruction save a peremptory one to find for it, and defendants asked but one, which was given. We find no reason for disturbing the judgment in but one respect. It is conceded the finding on defendants’ counterclaim is for $54.75 in excess of the proper sum, and they offering to remit that sum, the remittitur will be entered and the judgment affirmed; the costs of the appeal taxed against defendants.