Small v. Bartlett, 96 Mo. App. 550

Small v. Bartlett

96 Mo. App. 550 | Mo. Ct. App. | 1902

GOODE, J.

Plaintiff sued to recover damages for the breach of an implied warranty of the defend; ants in the sale of a car of corn. Plaintiffs were in the transfer business in Mayfield, Kentucky, and bought the corn through an agent of the defendants at that point, the defendants themselves having purchased it by sample in the St. Louis market.

According to the testimony, the corn consisted of grains of different colors, red, white and blue, so that its bad condition was not discoverable by casual inspection, and, therefore, was not detected until a few *552weeks after its receipt, when some horses to which it was fed sickened and died. Plaintiffs notified the agent through whom they had purchased and asked him to look at the corn, but he declined to do so, but wrote defendants about it, who, it appears, took the position that the corn was all right. It was then put into a loft, a small quantity afterwards fed to some hogs to get rid of it, plaintiffs say, and the balance was consumed by a fire which destroyed the building where it was stored.

Plaintiffs had judgment below and defendants appealed.

This case is before us with the record in such a shape that it is impossible to satisfactorily deal with the points made by the appellants, because no declaration of law was asked by either side, nor was there any finding of facts.

The trial seems to have proceeded on the theory that if, the corn was worthless for the purpose for which it was sold, namely, horse feed, plaintiffs were entitled to recover the price paid whether it was valueless for all purposes or not, a theory >long since and often repudiated by the courts of this State. Brown v. Weldon, 27 Mo. App. (K. C.) 251, 99 Mo. 564; Schoenberg v. Loker, 88 Mo. App. (St. L.) 387. But neither that rule nor any other was declared, and both sides state in their briefs that the trial judge found the corn was absolutely worthless; a statement, by the way, not borne out by the memorandum of an opinion delivered by him in overruling the motion for new trial, which, however, has not been made part of the record. We are asked to reverse the judgment on the ground that there was no evidence to justify that finding, and in support of the position the defendants rely on the fact that part of the corn was fed to hogs. But we are unable to say there was no substantial evidence to prove the corn was worthless. That inference- might well be drawn, as some witnesses testified that it was rotten and others that it was partly rotten. It killed *553two horses and made others sick, and may have been practically' without value though hogs could eat it.

The law is that if a vendee retains a purchased article and sues for damages for a breach of warranty in regard to its quality, he can not recover the entire purchase price, as the plaintiffs did, unless the article is shown to have been worthless, not merely for the purpose for which it was bought, but for any purpose.

Inasmuch as the evidence permits different inferences respecting whether the corn was totally worthless, the judgment is affirmed.

Bland, P. J., and Barclay, J., concur.