Skinner v. Kerwin Ornamental Glass Co., 103 Mo. App. 650

Skinner v. Kerwin Ornamental Glass Co.

103 Mo. App. 650 | Mo. Ct. App. | 1903

REYBURN, J.

(after stating the facts as above).— 1. If appellant purchased the fan by selecting it from the catalogue exhibited to him, without relying on the judgment of respondent, and the latter furnished the article designated, then manifestly there was no room for any implied warranty, but from the proof introduced and tendered by appellant, the contract of sale imported a warranty by legal implication, that the fan and appurtenances would be fitted for the use, for which they were required and applied, and would perform the work, for which they were designed, of expelling' the dust, caused by the sand-blast machinery, from that portion of defendant’s premises, in which such machinery was located. ‘ ‘ The adaptation of a machine to the uses for which it was made is always warranted. ’’ Comings v. Leedy, 114 Mo. 454; Smith v. Hightower, 76 Ga. 629. Without any express agreement, but from the fact that the apparatus was ordered by defendant for a particular object known to plaintiff, an implied warranty would arise that it would be reasonably fit for the uses for which it was intended, and would accomplish the purpose for which it was sold. ‘‘The principle is elemental that, when a dealer contracts to supply an article in which he deals, to be applied to a particular purpose so that the buyer necessarily trusts to the judgment of the dealer, there is, in that casé, an implied term of warranty that it shall be reasonably fit for the purpose to which it is to be applied.” Armstrong v. Tobacco Co., 41 Mo. App. 254; St. Louis Brewing Assn. v. McEnroe, 80 Mo. App. 429; Creasy v. Gray, 88 Mo. App. 454. This, the theory of the defense, appears to have met partial recognition in the instructions given to the jury, but was discarded in the admission of testimony. This *660proposition is interwoven in the first, second and third instructions given at instance of defendant, but the defendant was entitled to show that in the purchase of the fan and its equipment, it was in ignorance of the kind of apparatus appropriate for the uses intended, and that it relied upon the expert skill, experience and judgment nf plaintiff, to furnish such machinery as would attain ihe purpose sought. Benjamin, Sales (6 Ed.), see. 16, p. 644. The testimony tendered by defendant was competent and proper for such purpose and should have been admitted.

2. The instructions asked by defendant and refused by the court were as follows:

“If the jury believe from the evidence that the fan and piping sued for were sold by the plaintiff to the defendant for the purpose of exhausting or taking out dust from the* sand-blast room of the defendant, and that such purpose was known to the plaintiff when selling same, and that said fan and piping were worthless for that purpose, and that said articles as placed upon and attached to defendant’s premises by the plaintiff were and are of no value for any other purpose, then your verdict herein will be for the defendant.

“If the jury believe from the evidence that the fan and other articles sued for were sold as an apparatus by the plaintiff to the defendant to be set up on defendant’s premises for the purpose of exhausting or taking out dust from the sand-blast room of the defendant, and that such purpose was known to the plaintiff when selling same, and that the plaintiff failed to set up on said premises, and deliver to the defendant a fan and other articles or apparatus suitable for the above purpose, then the defendant was not bound to accept the fan and •other articles or apparatus set up and tendered, and, if •the defendant did. refuse to accept same, as not being of ;Such description, and notified the plaintiff within a reasonable time after said apparatus was set up and tendered, to put said fan and piping or apparatus in work*661ing order or remove same, then the plaintiff can not recover.

“The court instructs the jury that if it appears from the evidence that the defendant as soon as it had 'an opportunity to test plaintiff’s fan and piping or apparatus, or within one or two days thereafter, notified plaintiff to put it in working order or remove same, then such notice must he taken to have been given within a reasonable time, and as meeting all the requirements of this case in regard to notice on part of defendant that it rejected plaintiff’s fan and piping under the circumstances mentioned in the other instructions herein.”

If, after a reasonable opportunity to test them, the fan and appurtenances were found to be worthless, ’either for the purpose for which they were ordered by defendant, or for any other purpose, the consideration for their purchase wholly failed, and defendant’s testimony tending to show such fact was competent, and the first and second of above instructions predicated thereon would have correctly announced the law, and should have been given, if they had further required the finding that defendant relied on plaintiff’s judgment in furnishing a fan, instead of one of its own selection, but in the ¿form asked were in that regard defective. Comings v. Leedy, supra; St. Louis Brewing Assn. v. McEnroe, supra; Smith v. Bartlett, 96 Mo. App. 550; McCormick, etc., Co. v. Brady, 67 Mo. App. 292; Schoenberg v. Loker, 88 Mo. App. 387; Danforth v. Crookshanks, 62 Mo. App. 311.

3. The expert, testimony of defendant, offered to show what would be. a suitable apparatus to exclude dust from the defendant’s sand-blast room, and explanatory of the infirmities in the machinery furnished by plaintiff, should have been received. It was competent to show by proper testimony that the appliances supplied were defective, and insufficient for the intended purpose, and what character of apparatus would have relieved the condition sought to be remedied. As the matter in*662volved questions not within the common experience, and the ordinary information of men in general, hut which belonged rather to the domain of scientific knowledge, it was proper that the jury should have the benefit of witnesses possessing peculiar skill or information in that department of mechanical research and proficiency to which the questions related. Rogers on Expert Testimony (2 Ed.), p. 21; Monahan v. Coal Co., 58 Mo. App. 68; Gavisk v. Railroad, 49 Mo. 274. This testimony was also competent as tending to show that the fan was worthless for any purpose, and upon the theory of the defense sought to be established, that it relied upon the plaintiff to furnish a suitablé fan, such testimony was admissible as tending to prove that it was unsuitable for the purpose for which it was bought. The judgment is therefore reversed and the cause remanded.

Bland, P. J., and Goode, J., concur.