Safety Fund National Bank v. Westlake

21 Mo. App. 565 | Mo. Ct. App. | 1886

I.

Hall, J.

— The objection to the evidence was too general. The grounds of the objection should have been specified. Margrave v. Ausmuss, 51 Mo. 561, and cases .cited.

n.

The warranty pleaded in the answer was an absolute warranty. The warranty offered in evidence by defendant was a conditional warranty. There was a clear variance between the allegations of the answer and the proof. But as the parties both treated the warranty offered in the evidence as the warranty pleaded in the answer, we shall so treat it here. The case was tried as if the answer had pleaded a compliance on the - part of the defendant with the conditional warranty offered in evidence. The case will be reviewed by us' on that theory.

The condition of the warranty was “a condi oion precedent, to be performed by defendant before any liability attached to plaintiff.” Nichols, Shepherd & Co. v. Larkin, 79 Mo. 271. An averment by the answer of ■a compliance by the defendant with the condition of the warranty did not raise an issue that the plaintiff had waived such complianoe on the part of the defendant. Such averment did not authorize the introduction of .evidence to prove such waiver. Nichols, Shepherd & Co. v. Larkin, supra. The plaintiff, not having properly objected to the introduction of the evidence, cannot now be heard to complain on that account. But the introduction of the evidence, without objection, did not enlarge the issues. The issues were made by the pleadings. No issue of a waiver by plaintiff of the performance by defendant of the condition of the warranty was raised by the pleadings. Therefore, the plaintiff had a right to ask the court to submit the case to the jury without regard to such issue. And it was error for the court to refuse to so submit the case when asked by the plaintiff to do so.

The court should not have modified the instructions asked by the plaintiff in the manner in which it did modify them.

It was error also for the .court to give the instruction given for the defendant. By the condition of the warranty notice was required to be given to the local dealer and the plaintiff; notice to either the plaintiff, or its agent at Columbia, Mo., was not sufficient. Nichols, Shepherd & Co. v. Larkin, supra. The error of that instruction would not have been cured by the instructions given by the court of its own motion, even if they had been correct. The inconsistency between the instructions would have intensified the error in the said instruction, and not have cured it.

Judgment reversed and cause remanded.

All concur.