Fairbanks & Co. v. Delissa

Gill, J. — There are two counts in plaintiffs’ petition — one 'being based on the special contract between defendant and themselves, the other on a quantum meruit. By the special contract plaintiffs, in effect, obliged themselves to furnish a certain wind mill, tank, etc., and put the same in place on defendant’s farm, [719] and in consideration thereof defendant agreed to pay one hundred and fifty-nine dollars in two installments at future dates. In seeking to recover on this contract, it is clear plaintiffs’ must show substantial compliance on their part or fail. It is contended that the warranting “the within ordered wind mill,” endorsed on the back of the contract, does not cover the tank used in connection therewith. This position is not tenable. The word “wind mill ” used in the contract of warranty refers to the whole machine as ordered by the defendant. Plaintiffs contracted to supply defendant with an appliance for drawing water and storing it for use of defendant’s stock. Defendant was as much concerned in the tank or in the pump as in the mill proper. We construe the contract in the light of the circumstances, and so construing we must hold that the warranty includes tank, pump, mill — the whole plant. Now the defense to plaintiffs’ claim on the express contract was that plaintiffs had failed to comply therewith, in that the 'machine furnished was not of the quality agreed to be furnished, the particular defect alleged being a worthless tank and that plaintiffs on being notified of such defect had failed and refused to remedy the same. If the machine was so defective and worthless, as claimed, then plaintiffs, by the terms of their contract, were in duty bound “ to furnish free of charge the parts necessary to make good any defect in workmanship or material.”' It is undisputed that defendant did complain of substantial defects, and it is equally undisputed that plaintiffs refused to cure the defects. If then the machine was substantially imperfect, as claimed, defendant could not be held on the count for an express contract unless he had waived such defect, and unqualifiedly accepted the machine as a compliance with the contract. [720] This brings ns to the receipt or statement furnished by DeLissa to Regnier, the carpenter, November 10, 1884, when the machine was put up. By such receipt DeLissa acknowledges the receipt of the wind mill, etc., “in good order, as per contract dated September 6, 1884.” Plaintiffs claim this an absolute and unqualified acceptance of the machine, so that thenceforward defendant will not be heard to dispute its quality or character. The execution of ■ this receipt, under the circumstances as detailed in evidence by both DeLissa and Regnier, can not thus operate to bar defendant’s right to show up the truth in the controversy. It is quite clear, from all the testimony on this point, that such receipt was nothing more than a voucher to this hired carpenter, by which he could show to the plaintiffs, his masters, that he had performed the work of putting in place the machinery they had sold to defendant DeLissa, and the most that can be claimed for such statement is that defendant DeLissa was satisfied with the work as performed by such carpenter. Nor is DeLissa now complaining of Regnier’s work, but charges the fault on the appliance furnished by plaintiff and simply set in place by this carpenter. More than this, defendant, at the time, complained of the tank, and expressed his doubts if it could ever be of any value. He was assured however that as the tank was used, and became saturated with water, its faults woiild disappear — and if not that the plaintiffs would furnish another. • It would seem that the jury were well supported in their finding that there was no acceptance of the machine as a full compliance with the contract. Such receipt may be explained and read in the light of surrounding and contemporaneous circumstances. Grumley v. [721] Webb, 44 Mo. 455; Bigbee v. Coombs, 64 Mo. 529; Alexander v. Moore, 19 Mo. 143. To constitute waiver there must be both knowledge of the defect and acquiescence. Johnson County v. Lowe, 72 Mo. 639. DeLissa was suspicious of the tank, and so expressed himself to the carpenter, placing it, but he never expressed himself ready to accept it.in its imperfect condition. Neither did the giving this receipt to the carpenter, Regnier, operate as an estoppel on defendant, and preclude him from thereafter showing, in defense of an action for the purchase price, the machine to be imperfect and worthless. It is not shown that plaintiffs ever parted with anything on account of this receipt, unless it be that they paid Regnier for his labor in setting up the machine. But they were compelled to pay for his services, regardless of the quality of the machine. So that whether he reported the windmill a perfect or imperfect machine, plaintiff would, doubtless, have paid him for his services which he rightly performed. Since then the plaintiffs have never acted upon faith of this receipt — have never parted with anything, or any right on that account, there is no estoppel. Bigelow on Estoppel, 438; Acton v. Dooley, 74 Mo. 67. We have examined with care the instructions, those given and those refused, and it would seem, that, in the six instructions given, every substantial claim or defense was fairly presented to the jury. They were, in their entire scope and meaning, quite favorable to the plaintiffs. In instruction numbered six the court opened the way for a verdict for the plaintiffs on the second count of the petition (on quantum meruit), had the jury found the facts to so justify. By said instruction the jury [722] was in effect told that even though they might find that plaintiffs had failed to comply substantially with their contract to furnish said mill, etc., yet, if the jury found “that the plaintiffs erected on the defendant’s premises a windmill and tank, and that the same was of value to the defendant, and that he accepted and used the same, then they would find for the plaintiffs on the second count of the petition for the actual value of the mill and tank — not exceeding the contract price — after ded acting such damages as have resulted to the defendant from a breach of said contract, and that the measure of damage was the reasonable and necessary cost to make said windmill and tank conform to the contract.” Of this instruction plaintiffs have no ground to complain. Haysler v. Owen, 61 Mo. 274. The cause was fairly tried, and as we detect no reversible error the judgment is affirmed. All concur.