Fairbanks, Morse & Co. v. Miller

JOHNSON, J. This is an appeal from the district court of Kay county, Hon. W. M. Bowles, Judge. . This was an action on a promissory note commenced by the plaintiff on November 26, 1916, to recover from the defendants the sum of $2,000 and interest, with a copy of the note attached to plaintiff’s petition. On January 9, 1917, the defendants filed their answer and cross-petition, and on April 5, 1917, filed an amended answer and cross-petition, to which the plaintiff filed a reply on April 23, 1917. The trial was commenced on November. 19, 1917, before the court and jury, and very soon after the commencement of the trial the defendants asked leave of the court to file a second amended answer and cross-petition, which was granted over the objections of the plaintiff. Time was taken for the defendants to prepare and file the same and for the plaintiff to file its reply thereto. The record discloses that the plaintiff was granted permission by the court to continue the case if it so desired, but it declined so to do, and the trial was proceeded with, which resulted in a verdict in favor of the defendants. The plaintiff filed a timely motion for a new trial, alleging numerous errors committed by the trial court, which motion was overruled by the court and.exceptions saved, and thereafter this proceeding in error was regularly commenced to reverse the judgment of the trial court, the specifications of error being: (1) The court erred in giving instructions number 3, 4, and 5: (2) The court erred in refusing plaintiff’s requested instructions 1 to 7, inclusive; (3) The court erred in admitting evidence ; (4) The court erred in excluding evidence ; *267 (5) The verdict and judgment were against the law and the evidence; (6) The court erred in overruling plaintiff’s motion to strike out parts of answer; (7) The court erred in overruling plaintiff’s motion for a new trial. The allegations of the defendants’ second amended answer and cross-petition were as follows: “Come now ,the defendants, and for their second amended answer and cross-petition, leave of court first having been obtained, deny each and every allegation therein contained, save and except those herein specifically admitted or otherwise responded to. “The defendants admit that they signed the note sued upon, but allege that the consideration therefor has wholly and fully failed, in this, to wit: that the $2,000.00 for which said note was given was part purchase price of a certain machine which was warranted by the seller, in writing, to be a 30-60 horsepower tractor, meaning thereby to develop 30 horsepower as a tractor, in addition to carrying its own weight and 60 horsepower when used as a stationary engine from the belt; further warranting that the engine should be made of good material and in workmanlike manner. “The defendants further allege that the said engine for which said note was given was to be used as a tractor, for pulling plows and binders for cutting grain, and for threshing machines, etc., as a stationary engine; that said engine has wholly failed to perform its function as a tractor or to develop the said 30-60 horsepower at any time, and has failed at all times to work or operate in high gear; that the engine was of such defective nature and had so much vibration that it destroyed its usefulness by tearing itself to pieces, because of defective bolts and material in said engine and the said vibration brought about by the use of the machine as tractor. “The defendants specifically deny that the machine was made of good material or in good workmanlike manner; and specifically allege that the engine would not and did not develop the 30-60 horsepower in operation or when tested. The .defendants, further answering, say that the air starter on said machine wholly failed to perform its function and failed to start machine to exceed three times after the machine was placed on the place of defendants herein and that the said tractor was to be complete with the said air starter, and the said air starter is absolutely worthless, as well as the tractor, and was at the time furnished, and has wholly failed to perform its work, and the said tractor has wholly failed to perform its work as warranted by the plaintiff herein, and has wholly failed to develop the said horsepower warranted. “The defendants, further answering, allege the fact to be that, the said tractor failing to work, during the fall of 1914, and being defective in workmanship and materials, and in not developing the said horsepower, the plaintiff’s agent agreed, orally and verbally, to repair and fix the said tractor until the same would do the work warranted that it would do and develop the horsepower warranted to develop, and to furnish repair until the said machine was as good as new, and make the said machine do the work which it was intended, and, relying upon the said statements and believing the statements and representations of the plaintiff’s agent and that they would make the machine work and develop the said horsepower, as warranted it would do, and furnish the repairs to make it of good material and in workmanlike manner, the defendants paid to the plaintiff the sum of $750.00 on said engine and gave their promissory note for $2,000.00, due August 15, 1915; that in the spring of Í915, when the time came for operating said machine, relying upon the promise to make good, the defendants sent to the plaintiff and asked for a man to come and repair and make said machine operate, and were required to pay the salary of said man so. to do, which they did willingly, and that the plaintiff sent to the ranch of the defendant herein, one of their agents by the name of iSnyder, who worked 30 days upon said machine and succeeding in making it work about four days out of the thirty days, the balance of the time being spent in repairing or waiting for repairs for the said machine that had torn itself to pieces in the operation thereof, and trying to get it to develop the said horsepower warranted, which it failed to do and did not do. “The defendants further state that the said Snyder was then called away and the note about to become due, so the defendants wrote the plaintiff and asked for extension of the note, still believing and relying upon the statements and representations arid warranties in the contract, that the machine would be made to do its work; that the said extension was granted to February 16, 1916; that the defendants then tried again during the fall to operate said machine, and it continuously tore itself up with vibration and because of the defective material placed in the engine at the time of its manufacture, and .completely and wholly failed to develop the horsepower warranted in the warranty that it would develop or test. “The defendants further state that they permitted the year under which the warranty to furnish repairs was made, to elapse, believing and relying upon the statements made by the plaintiff through its agent, which were false and untrue, that the plaintiff would make the engine work and develop the said horsepower and repair the said machine until the defects of said engine would be replaced with good materials *268 and in a good, workmanlike manner, and would develop the horsepower it was warranted to develop and to do the work it was intended to do; that the defendants began a correspondence with the main office of the plaintiff after failing to get the satisfaction through its agents who came and attended to the working of said machine as alleged, and told the plaintiff that said machine was experimental and would not do the work for which it was intended and which it was warranted to do; that on the 2nd day of February, 1916, the defendants wrote to L. S. Carr, the general manager of the plaintiff, at Kansas City, Missouri, and advised him that one of the defendants would be in Kansas City to take the matter up with the said manager of said plaintiff, L. S. Carr; that pursuant to said letter, George L. Miller, one of the defendants, went to Kansas City, and after conversing with the said manager, L. S. Carr, offered to return the said machine and lose what they had paid upon the said engine if he woudl turn over the said note, advising him that the said machine was defective and would not develop the horsepower it was warranted to develop and would not do the work it was intended to do, and had not; that the said L. S. Carr thereupon' agreed to make the machine good and do the work it was intended to do, and to develop the said 30-60 horsepower and to be placed in a workmanlike manner and the defective parts replaced, and make this machine, operate, before the defendants would be required to pay said note; that the defendant, George L. Miller, then returned to Oklahoma, and a few days after, received a letter from L. S. Carr, that he had written the company at Chicago, and that the company in Chicago demanded payment of this note, and then for the first time, the defendants refused to pay this note, and permitted suit to be brought thereon, being the first time that the defendants were apprised that the plaintiff did not intend to carry out its agreements, both written and verbal, to make this machine work and make its defects good and in a good, workmanlike manner, and to develop the horsepower it was intended to develop and warranted to develop. “Defendants, further answering, and by way of cross-petition, allege and make a part of the cross-petition, all the facts here-inbefore set out in their second amended answer, the same as if recited herein, and further allege that they have paid upon this worthless machine the sum of $750.00, together with about $300.00 freight, and approximately $400.00 for repairs, and further allege that the loss of time and delay and expense paid for men to operate the machine and the delay in their work would just about counter-balance, offset and pay for the plowing done, and that the defendants have been damaged in the sum of $1,-250.00 by reason of this transaction and the things heretobefore set out. “Wherefore, the defendants pray that they go hence and without day and that this action be dismissed upon the promissory note, at the cost of the plaintiff, and that they have judgment against the plaintiff for the sum of $1,250.00 damages, and the costs of this action.” The plaintiff’s reply denied generally and specifically in great detail all the material allegations in the defendants’ second amended answer and cross-petition. At the conclusion of the plaintiff’s evidence, the court sustained the demurrer of the plaintiff to that part of the cross-petition wherein the defendants asked for damages in the sum of $1,250.00, to which the defendants save no exceptions and from which they have not appealed. The record discloses that in June, 1914, the defendants, by and through the defendant George L. Miller, who was at the time actively engaged in managing the 101 Ranch, and conducting the business for the defendants, entered into negotiations with the plaintiff, by and through its agent, W. R. Erskine, for the purchase of. one 30-60 horsepower tractor, complete with air starter and engine, and as a result of which negotiations the defendants gave the said agent of the plaintiff an order for said tractor; that Erskine and the defendant George L. Miller were well acquainted, the said Erskine having sold the defendants a great deal of farm machinery and having conducted the business of the plaintiff with the said defendants prior thereto. The order so given for said tractor was in writing, and was accepted by the plaintiff, it seems, on June 22nd. The order bears the signature of George L. Miller and is not denied, although George L. Miller admits that he did not know that he had signed an order until so informed by counsel for the plaintiff, after the same was called for trial and after Mr. Sullivan had made the opening statement for the defendants and after the defendant George L. Miller had started to testify. At any rate, there was a written order for said tractor which was accepted by the plaintiff, which, among other things, contained an express warranty warranting the said tractor (1) to develop its rated horsepower ; (2) that it would be made of good material and in workmanlike manner; and (3) that repairs required at any time within one year from the time of first starting would be furnished by the buyer f. o. b. Beloit, Wisconsin, without charge provided investigation showed that such repairs were made necessary by inherent defect of either material or workmanship of the machine furnished. *269 That in said order it was agreed that the terms of sale were $400 to be paid September 1st, and the balance January 1, 1915, there being included in said order one second-hand separator at the price of said $400, and the price of the tractor to be $2,-750. That thereafter plaintiff did deliver to the defendants a tractor and sent a man to assist and superintend in the unloading and delivery thereof, to the farm of the defendants, from the point of shipment to wit, Ponca City, Oklahoma, who was an expert in handling tractors; that the defendants also had in their employ at least three men of experience in the handling of tractors and competent to do so; that said tractor was unloaded by the agent of the plaintiff, with the assistance of the employes of the defendants, and he attempted to drive the same by its own power to the farm of the defendants; that said tractor then displayed that it was not made of good material or in a workmanlike manner, it' being a new. tractor and breaking in some places, burning out main bearings, etc. The tractor finally reached the farm of the defendants, where it was taken to the blacksmith shop. The said agent of the plaintiff then tried to repair the defects and did some welding and other repair work, and, after a day of repairing and rebuilding, they finally got the machine out into the field and demonstrated it to the employes of the defendants, and left; that defendants’ employes then tried to use said tractor, and did use it as much as they could, and did everything that they could to make the machine work, but various parts of the said tractor engine continued to break, necessitating repairs; repairs were sent for, some of which were paid for by the plaintiff, and a great deal of time and labor, to say nothing about the repairs, were used trying to repair and rebuild said engine. The bolts, rods, crank cases, etc., were constantly breaking; complaints were made to the agents of tlio plaintiff, the defendants claiming the said engine was defective, that it was not made, of good material or in workmanlike manner and was not what it was warranted to be. Plaintiff was informed of the defective condition of the engine and complaints were made as aforesaid on numerous occasions and each time it would promise to put the engine in proper shape and remedy the defective parts. That said engine was retained by defendants pursuant to said promises and for the purpose of giving the plaintiff an opportunity to make good its warranty at its request, or the request of its agents. The vibration of the engine was so great that it would literally shake the engine to pieces, loosening bolts, nuts, and other parts, as a result of which other bolts would break and cause other important parts of the engine to break. The starter never would work and was never made to work, although plaintiff was informed of its condition also. Very little work was done with the said tractor engine, but a great deal of time was consumed between the time the tractor arrived and the time it was stored in the fall in waiting for repairs and in trying to repair it both by the plaintiff and defendants, and finally the defendants came to the conclusion that plaintiff had not and could not comply with its contract with the tractor that had been sent, and when Mr. Erskine, the man who had sold defendants the tractor, came to make settlement, the defendants refused to settle or pay for the said tractor; thereupon an agreement was reached whereby the entire account of the defendants with the plaintiff was settled with the exception of the tractor in question, and it was then agreed that if the defendants would give plaintiff their note for $2,000.00 ($750 of the purchase price having been paid to take care of it in some other manner) plaintiff would make good its contract of warranty, remedy the defects in the machine, and put it in first class shape, and upon the strength of these promises and inducements and in consideration thereof, defendants executed and delivered the note sued upon in this case, as the balance of the purchase price for said machine. It was further understood and agreed at said time that the machine was not being run and would not be run until the following spring, but before that time the plaintiff was to send a man to repair, rebuild, and put the machine in first olass shape, satisfactory to the defendants. Pursuant to this agreement the note was executed and delivered and accepted by the plaintiff, and in June, 1915. the company sent their agent, an expert tractor man, Snyder, but insisted upon the defendants paying him at the rate of $100 per month, and in order to get him the defendants were compelled to pay him the said rate. After arriving, Snyder had to leave on business for the company and was gone for four or five days and upon his return he commenced to work on the said tractor engine. He remained there until the latter part of June, overhauling the engine and trying to make it work properly, but did not do so and did not repair successfully or remedy the defective conditions in the engine, failed to get the engine to work and failed to put it in first class shape, and when he left said engine was practically in *270 the same shape that it was in when the note was given, except that more repairs were put on the engine. When Snyder left he said he had to go away to look after some other tractors for the company; that he had been sent there to make the engine work satisfáctorily and that he would come back and remedy the defects. He never came back. Defendants, at the request of plaintiff’s agents, tried, from time to time during the following months of July, August, and September, to use the tractor, during which time they continued to have the same trouble, and in October the company again sent a man to the ranch of the defendants to fix the machine, who failed to fix it, and at that time the engine was stored. The note sued upon is dated January 1, 1915, and made due and payable August 15, 1915. In August, 1915, after various conversations and promises of the plaintiff’s agents and still believing that the company would make the promises good and comply with its contract of warranty, it seems that George Miller wrote a letter to the plaintiff’s agent at Kansas City in response to one written to him, stating that it would be inconvenient for defendants to take up the note in question at its due date. There was some further correspondence and the note was extended for six months, making its due date February 15th. Up to this time plaintiff had not complied with its contract of warranty and the agreement made at the time the note was given, but the machine was still in the possession of the defendants, at the request of the plaintiff, in order that it might comply with its agreements. Nearly all complaints and dealings relative to the machine were had between the defendant George Miller and the agents of the plaintiff, Erslcin and Snyder. Miller’s reason for corresponding with the Kansas City branch was that he had received a notice from that office notifying him that the note would be due on August the 15th, and his purpose in writing the letters that he did was to avoid payment of the note until the tractor was working satisfactorily and the plaintiff had complied with its agreements, which was the agreement at the time he made the note; but it seems that instead of getting better the tractor got worse. On August 18, 1915, three days after due date of the note, Miller wrote a letter to the plaintiff at the Kansas City branch office, demanding that they take the machine back or comply with their agreements. The plaintiff continued to work with the machine and tried to remedy the defects, and in October again sent a man to repair and rebuild the machine, but he was unable to remedy the defects, or at least did not do so, and the engine was put in the shed. Plaintiff having failed to comply with its agreements, in February, 1915, before the due date of the note, Miller wrote a letter to the office of the plaintiff at Kansas City, saying that he would be in Kansas City and would take up the matter of the note with them, and pursuant thereto did go to Kansas City and talk with a Mr. Carr, general manager of the Kansas City branch office, and told him that the defendants would not pay the note, or would not pay it until plaintiff complied with its contracts, and tried to get the plaintiff to take the machine back. At first Carr refused to take the engine back, but again offered to put the machine in good condition, and finally said he would let Miller know within a few days what plaintiff would do, and after returning home defendants received a letter from plaintiff saying it would do nothing. On February 14th, defendants wrote a letter to the company again refusing to make the payment of the note and suggesting that, in view of the fact that plaintiff had failed to comply with its agreements and would not do so, they could bring suit to determine the rights of the parties, and in November, 1916, this suit was filed. From this record it is clear to us that all of the specifications of error of the plaintiff were without merit. We have examined) the instructions off the court given to the jury, as well as the requested instructions of the plaintiff that were refused, and find the same, and the rulings of the court in relation thereto, remarkably free from error. The testimony of the defendants’ witnesses, George L. Miller and the employes of the defendants who attempted to handle and operate the tractor, that the tractor was defective and would not do the work for which it was purchased, is practically undisputed and shows clearly that the jury was fully warranted in finding that the tractor was so defective in material and workmanship that it was entirely worthless and therefore the verdict of the jury was amply supported by the evidence, and, as we have seen, the .court properly instructed the jury as to the law. This brings this appeal clearly within the rule so often announced by this court and so' well understood by the bench and bar of this state, that it is not necessary here to cite the numerous eases supporting the rule — that in a law action tried to a jury, the verdict of the jury will not be disturbed on appeal *271 where there is evidence reasonably tending to support the same, and where, as stated, no reversible error is found in the record. As to the questions of law raised by counsel applicable to this case, it is sufficient to say that every applicable question raised by counsel was passed upon by this court and decided adversely to counsel’s contention in the case of Hart-Parr Co. v. Duncan, 75 Okla. 59, and the decisions of this court cited therein, of Young v. Blackart, 51 Okla. 285, 151 Pac. 1057; Barber Medicine Co. v. Bradley, 48 Okla. 82, 150 Pac. 127; Rawlings v. Ufer, 61 Okla. 299, 161 Pac. 183; J. I. Case Threshing Machine Co. v. Huber, 160 Mich. 92, 125 N. W. 66, 32 L. R. A. (N. S.) 212. It will be unnecessary to cite other authorities or use additional argument in this opinion. Finding no reversible error in the record, the judgment of the trial court is therefore affirmed. HARRISON, O. J. and KANE, MILLER, and KENNAMER, J.T., concur.