Moomaw v. Emerson

80 Mo. App. 318, 1899 Mo. App. LEXIS 159

• Court: Missouri Court of Appeals
• Decided: May 2, 1899
• Status: Published

Opinion

BIGGS, J.

This is an action for damages for alleged breaches of an express warranty in the sale of a jack. The plaintiff lives in Virginia and the defendant in Missouri. The negotiations for the purchase of the jack .were by correspondence. - The warranty relied on is evidenced by the following letter received by plaintiff from defendant:

“Bowling Green, Mo., January 28th, 1897.

“Mr. W. H. Moomaw, Roanoak, Va.

“Dear Sir: — In reply to yours of 26th will say Mr. Buck has one of my best imported jacks selected for you. I guarantee him to be a good performer and breeder. He has style and action like a coach horse, black silky hair, long tapering ears, fine large flat bone. Send on your-note and reference together with your security. Yours truly,

“Luke M. Emerson.”

The purchase price of the jack was $275. Upon the receipt of this letter the plaintiff sent defendant his negotiable note for the price of the animal, payable in July, 1898, which the defendant accepted and within a few days thereafter he discounted to a bank in Virginia. Subsequently, to wit, on the nineteenth of February, the jack was shipped by defendant. The plaintiff alleged and introduced evidence tending to prove that the jack was worthless for breeding purposes and was but of little value (if any), for any other purpose. The defendant answered that he sold the jack under the following conditional warranty, which he mailed to the plaintiff on the day the jack was shipped, and that the plaintiff had failed to return or offer to return the jack.

“contract.

“Bowling Green, Mo., Eeby. 19, ’97.

“This certifies that I have this day sold to Moomaw & Buck, ~W. Va., one imported Spanish jack for $275, to be paid for in one note, due July, 1898.

Conditional warranty. “And I hereby guarantee that with proper treatment and handling said jack will prove a reasonably sure breeder, and in case he should prove unsatisfactory after one season’s trial, I agree that he shall be returned to my stables, and if as sound and in as good' condition as when he leaves here, exchange for some jack of same breed and cash value.

“The above and foregoing shall be construed as a special warranty, and as embracing in its terms the full extent of my liability in case of a breach thereof.

“L. M. Emerson.”

The averments of the answer are supported by the testimony of the defendant. The defendant asked and the court refused instructions predicated -on the alleged conditioned warranty. The plaintiff recovered a judgment for $300, and the defendant has appealed.

Cofcontract.101* We are of the opinion that the circuit court was right in refusing the defendant’s instructions. It is conceded that the defendant wrote the letter of January 28. Unquestionably this letter contains an unconditional warranty. It is also undisputed that the plaintiff on the faith of this letter sent his note and that the defendant accepted it. This closed the contract. Erom that time the jack became the property of the plaintiff. The defendant testifies that on the day the jack was shipped (which was after the- note had been received and sold by him) he mailed the conditional warranty to plaintiff. There is no evidence that the plaintiff received it, except the presumption arising from the mailing of it, and there is no evidence that the plaintiff was advised of it before it was sent nor that he consented at any time to a modification in any respect of the original terms of sale. As we have shown the contract for the purchase of the jack was finally consummated by the receipt and acceptance of the note by defendant. Clearly the conditional warranty relied upon by defendant was an attempted modification of tbe terms of tbe original bargain. Before tbe defendant could avail bimself of this alleged new agreement be was bound to show that tbe plaintiff, for an additional or independent consideration, assented to it. Having failed to introduce sucb proof, tbe circuit court could not do otherwise than refuse tbe instructions asked by him.

It is insisted that tbe failure of tbe jack to perform was tbe-result of bad management on tbe part of tbe plaintiff. There was evidence tending to prove and to disprove this. Tbe question was submitted to tbe jury under proper instructions. Tbe finding was against tbe defendant and be is concluded by it. Tbe judgment of tbe circuit court will be affirmed.

All tbe judges concur.