Wilcox v. Powers

6 Mo. 145 | Mo. | 1839

Opinion of the court delivered by

Napton Judge,

Wilcox presented to the county court of Pike county, fox allowance against the estate of Emanuel Poor deceased, a note executed by said Poor, in his life time, to one William Alton for $38. On the back of the note was the endorsement: “This note is given for a clock which is warranted to be a good time piece for six months. If it should fail said Poor is to be furnished with one that will. (Signed) Alton.” The execution of the note by Poor and of the warranty by Alton were admitted. A son of the deceased proved that the clock did keep good time about five months with a few occasional stoppages, at the expiration of which time the clock stopped, on account of the breaking of a chord attached to ono of the weights, and that the alarm did' not go off as well as could have been desired, for what cause witness could not say; that some time in the fall of the. same year, after the expiration of the six months during which the clock was warranted to run well, Wilcox called at his fathers house, remained all night and repaired the clock by putting in a new chord; that since that time the clock has run tolerably well, except a few occasional stoppages ; and that some time after said note became due, some one called on Ins father for payment, but his father refused, saying that Alton might sue on it. This was in substance all the evidence. The county court refused to allow the note, from which decision Wilcox appealed to the circuit court. The circuit court affirmed the opinion of the county court, and the plain tiff appeals to this court. According to the decision of this court, in the case of Davis vs. Cleveland, 4 Mo. Rep. 206, the county court committed no error allowing the defendant to -avail himseli of an equitable defence; the only question is, whether the circuit court exercised its discretion soundly in affirming the judgment of the county court, upon the facts, thereby depriving the apPe^ant benefit of a new trial, Rev. Co. § 35, p. 63-4-8. There was not sufficient proof of the failure of the warranty, for- the defendant did not show any facts from which an inference could be drawn that the clock was not a good time piece. True- it stopped when the chord attached to the weight broke, and it occasionally stopped after the chord was mended, but whether these stoppages wTere owing to the negligence or carelessness of the owner in failing to 'wind it np at suitable periods, does not appear. No deficiency in the mechanism was shown, or that it was not well adapted to the ends it promised to accomplish. There is such an entire abscence of testimony on these points as well warranted, in our estimation, a new trial. Judgment reversed and cause remanded.

An admin istrator ma y of an udetlnTt0 presented to oourt°fort3al. ^ ah?st°a f eased estate.