76 Mo. App. 287 | Mo. Ct. App. | 1898
This is the third appeal of this case, the first is reported at page 75, volume 51, and the second at page 632, volume 67, Mo. App. On the third trial plaintiff filed his fourth amended petition, the substantial averments of which are, that he purchased of defendant a furnace for the purpose of heating his residence on South Brand avenue, city of St. Louis for $425; that the defendant guaranteed the furnace to warm the house to seventy degrees when the thermometer was at zero, and further promised that if anything about the furnace was not understood, and if any alterations should be necessary to accomplish the heating to seventy degrees in zero weather, he •would make such alterations free of charge; that the furnace was put in the basement of the house, but was insufficient and incapable of heating the same to seventy degrees in zero weather. The answer was a general denial. The guarantee and promise to make necessary changes were in writing, signed by the defendant. Plaintiff proved by his own testimony and by that of three other witnesses that the furnace did not heat the house in moderate winter weather to seventy.degrees, and that it was necessary to burn coal fires throughout the house in order to make it habitable in cold weather. *
The plaintiff asked the following instruction, which the court gave, after amending it by inserting the words in italics of its own motion :
*291 Instruction. *290 “íhe court instructs the jury that if you believe from the evidence that the defendant, Gustave A. Pauley, agreed to put in plaintiff’s house, No. 1420 South Grand avenue, the furnace in question, and that*291 said defendant guaranteed that said fur-_ nace would heat said house to a temperature of 70 degrees when the thermometer stood at zero o.ut of doors, and that the defendant did put a furnace in said house which failed, when properly used and handled, to so heat the same, then you must find for the plaintiff.”
To the giving of this instruction as amended plaintiff saved his exception, and also an exception to the following instruction given for defendant:
“If from the evidence the jury believe that the furnace in question, with proper handling, would heat plaintiff’s house to a temperature of 70 degrees when the thermometer was zero, then the jury will find for the defendant.”
The jury found the issues for the defendant and judgment was accordingly rendered for the defendant. From this judgment plaintiff duly appealed, and contends here that the court committed error by inserting the words “when properly used and handled’ ’ in the instruction given for plaintiff, and also in giving the instruction containing these words, for the defendant.
Plaintiff offered evidence tending to prove that the furnace was properly used and handled, but notwithstanding this it failed to do the work it was guaranteed to do. The defendant’s testimony tended to prove that the furnace when properly handled did do the work he guaranteed it should do. The furnace required to be used, that is, to have fire and fuel to generate heat and to be handled, that is to be kept clean and to have its dampers properly adjusted to distribute the heat where wanted.
To do this most efficiently, it was necessary to properly use and handle it. In no other way could its capacity be truly tested, or could it be determined whether it was capable of doing the work it was guar
As was said by Judge Rombauer when the case was here before (67 Mo. App. loc. cit. 638), it was implied that the reasonable and careful use of the furnace was a condition precedent to its compliance with the warranty. It was therefore proper to incorporate this implied condition in instructions to the jury.
But it is contended by appellant that the evidence that it was so handled and used, was all one way, and that this fact was not disputed. In this contention appellant is in error, for the testimony of the respondent tended to prove that the furnace would fill the requirements of the warranty when properly used.
But conceding that the evidence was all one way, it does not follow that this issue should not have been ■ submitted to the jury, the jury might not believe the witness, although he was not contradicted by any other-witness; they were not bound to believe him because he was uncontradicted by any other witness. Turner v. Loler, 34 Mo. 461; Bryan v. Wear, 4 Mo. 106; Evans v. Wilder, 5 Mo. 313; Robertson v. Drane, 100 Mo. 273; Wilkerson v. Eiler, 114 Mo. 245; Walters v. Cox, 67 Mo. App. 299; Wolff v. Campbell, 110 Mo. 114.
From the evidence contained in the abstracts, it seems to us that the verdict ought to have been for the appellant, and for substantial damages, but we can not usurp the province of the jury, nor set aside the verdict where there is any evidence to support it.' There is some such evidence in this case. Singleton v. R. R., 41 Mo. 465; Deere v. Plant, 42 Mo. 60; Baum v.
Discovering no reversible error in the record, the judgment is affirmed.