Craycroft v. W. G. Walker & Co.

Philips, P. J. I. The first question for determination on this record is, was the guaranty on the part of the defendants properly admitted in evidence % It is true that this paper does not appear to be signed at the bottom of the vendors’ guaranty, as it should have been signed if it were a separate paper or instrument. But we take it, from the abstract of the record furnished by the appellants, that this guaranty, and the subjoined stipulation, or agreements, on the part of the vendee, were printed or written on the same piece, or continuous pages, of paper. The contrary fact not appearing in evidence; the presumption is to be indulged in favor of the ruling of the trial coart, that they were so connected. Holten v. Kemp, 81 Mo. 665. Although the vendor’s guaranty is not separately signed by him, he did sign the instrument at its conclusion, which, throughout, refers to the preceding guaranty, as if made by the defendants, and as if a part of the one so signed. Without such guaranty being obligatory on the defendants’ part, the subsequent stipulations would .be meaningless and inoperative, at least in some important particulars. After the defendants have thus recognized it, the two parts must be deemed as one instrument, and construed and applied together. Railroad v. Atkinson, 17 Mo. App. 498; Railroad v. Levy, 17 Mo. App. 501, and cases cited. II. The important question then arises as to the proper construction to be placed upon these agreements or covenants. The contention of defendants is, that they are mutual and dependent; that, while the vendor undertook to sell the vendee a press of the character specified [481] in the guaranty, yet the vendee’s right to proceed as for a breach of the guarantors’ warranty, is, by another part of the instrument, made to depend upon the vendee’s having, as a precedent act, done a certain other act on his part, one of which is that he had fifteen days within which, after the delivery of the machine to him, to make a test of its fitness by his own competent workmen or servants, and if it failed to give satisfaction, he was, within the fifteen days, to notify the vendors thereof, and allow them the opportunity to set jit up with their more experienced servants.. There is much discussion in the text books and adjudications, touching the question of the dependence of mutual covenants, or undertakings, between vendor and vendee. But, as said by Napton, J., in Freeland v. Mitchell (8 Mo. 489): “The only principle to be extracted from the numerous cases in relation to the dependence or independence of covenants is, that they are to be construed according to the intention and meaning of the parties, and the good sense'of the case.” So in Wellman, Adm’r, v. Dismukes (42 Mo. 105), Wagner, J., observed: “In the application of this rule, a difficulty sometimes arises in determining whether covenants are mutual in such a sense that each is a condition precedent to the other, or whether they be dependent or independent. This question must generally be determined, in each particular case, by inferring, with as much certainty as possible, the meaning and purpose of the parties; from a full survey, the rational interpretation of the whole contract.” In looking at the whole and every part of the undertaking, on the part of the vendee, it is apparent that the matter of time was deemed important, and that certain acts were to be performed, within a given time, by the vendee, and this for a most obvious reason, to iny mind. It was not, as between the parties, an unconditional [482] sale. Tlie title was to remain in the vendors until the vendee performed certain acts on his part. The vendee was to make a certain cash payment; he was to execute and deposit notes in a certain bank, for the unpaid purchase money, and, also, to execute and put to record a chattel mortgage, to secure the unpaid purchase money, and, also, to take out a policy of insurance on the property, for the benefit of the vendors. The stipulation was that this should be done within fifteen days. The object of the fifteen days’ limitation becomes quite obvious when we take into consideration another part of the contract, whereby the vendee is to have fifteen days within which to make a test of the press, to see if it works satisfactorily, or conformably to the representations. The presumption would be, that if, at the end of that time, the vendee executed and delivered the notes, as, also, the mortgage, he was satisfied with his purchase, and had finally accepted the machine. Then follows this provision: “I do further agree, that, in case I am unable to make said press work satisfactorily, within fifteen days from its receipt, I will notify Walker & Company, and ask them to set up said press, free 'of expense to me.” What is the meaning, or clear implication, of this provision, when read in connection with the others ? Simply that the vendee was to be allowed fifteen days, after the receipt of the press, to make the test to his satisfaction. If, however, it failed, on his experimenting with it, he could not yet go upon the vendors as for a breach of the guaranty, but must then notify the vendor of the failure, and ask them to set it up. The object of the stipulation was to afford the vendors an opportunity, with their own more experienced employes in operating this machinery, to set it up properly, and rectify any defects in its running and work. And yet another right was secured, after this, to the vendors, to replace the press with another, within thirty days after the expiration of the fifteen. ■ [483] • As was said in Nichol, Shepherd & Co. v. Larkin (79 Mo. 270), on a like question, where the contract called for notice to be given the vendor, or'manufacturer of the machine : “The reason for this was obvious enough, if it were necessary to give one, to sustain a positive undertaking. It was possibly to guard and protect themselves against the indifference, the neglect, and lack of skill on the part of local agents, necessary to the rectifying of defects in the working of the machine. By imposing the duty on the purchaser, the party complaining, to notify the manufacturer, it insured a greater certainty in his getting the notice, thereby enabling the manufacturer to look to his work and protect the reputation of his machinery.” While it is not necessary, in this case, to hold that the notice should have been served directly on the vendors, the reason of the fifteen days’ limitation' is plain. After a machine like this is run for a period of sis months, with different, and, perhaps, -indifferent, operators, it would be unfair to the vendors to submit to a test. They desired to do this while the machine would, presumably, be nearly in the condition as when it left the factory. If the vendee had such confidence in his own employes as to he content with their experiment, to close up the contract by giving the notes and mortgage, and continuing to operate and hold it for a longer period, without one word of complaint, his acceptance was to be deemed complete. It was contemplated that he would make a practical experiment with the press, in every branch in which he expected to employ it, within the fifteen days, and not to go on with it for months or years, as if satisfied with it, and then put it to some other test. Under such a construction, the vendee could have run this machine in his printing office for nearly five years before attempting to do book printing on it, and then sue for a breach of the warranty, on the ground that it failed in this work. Such was not the purport of the contract. The action being to recover on [484] a contract, by the terms of which an essential precedent act was to be performed by the plaintiff, he cannot recover without proof of compliance on his part. Nichol, Shepherd & Co. v. Larkin, supra. There are other errors in this record, but as the objection above stated is decisive of the case, as here presented, it is not important to review them. The instructions given by the court, for the plaintiff, wholly ignored the limitations of the contract, and should not, therefore, have been given in that form. Hoffman v. Parry, 23 Mo. App. 30. The judgment of the circuit court is reversed, and the cause remanded for further proceeding, in conformity with this opinion. All concur.