Albert v. Seiler

Peers, J., delivered the opinion of the court. This action was commenced in the Cape Girardeau court of common pleas in September, 1884, upon the following written instrument: “Cape Girardeau, Mo., July 16, Í884. We have this day bought of S. Albert, Cape Girardeau, Missouri, one second-hand Garr, Scott & Company separator, which Mr. S. Albert agrees to put in good running order and furnishes whatever is necessary to do the necessary work, warranting the same. We agree to pay him for said engine and separator the sum of seven hundred dollars as follows: Our notes payable October 1, ’84, and October, ’85, for three hundred and fifty dollars each. “(Signed) “ Wendell Seiler, “ John M. Devore.” Por a breach of said writing obligatory plaintiff charges that defendants wholly failed, neglected, and refused to execute and deliver to plaintiff their promissory notes as in said agreement mentioned, or pay the purchase price of said machinery or any part thereof, and that by reason of their refusal to comply with their agreement, plaintiff has been damaged in the sum of one thousand dollars. — 253 — In their answer the defendants admit the execution of the instrument set out in plaintiff’s second amended petition; they deny that the plaintiff performed the conditions, acts, and agreements by him agreed and contracted to be performed and done in and about said engine and separator ; and they aver and say that plaintiff did not put said engine and separator in good running order and repair as by said agreement he bound himself to do' and as it was contracted should be by him done before defendants should be compelled to accept said engine and separator. “Further answering say that at the time they signed and delivered said instrument of writing to plaintiff, he agreed and contracted with defendants that, previous to the delivery of said machinery to defendants' and their acceptance of the same, he should put new governors, a new pump, and a new lower or first joint off pipe on said engine ; and, that he would furnish new belting, a new straw carrier, and a new set of teeth for said separator, attach and adjust the same théreto and put said engine and separator in good running order; that plaintiff failed and refused to furnish said repairs to said engine and separator; and by reason of said engine and separator not being repaired at the time fixed for the delivery thereof to defendants, and of plaintiff’s then refusing to make or furnish said' repairs, defendants refused to accept said engine and separator. “ For other and further answer defendants say that at the time appointed and agreed upon by plaintiff, for the delivery of said engine and separator to defendants, they called for them at the place where the same were to be delivered to them, and were ready and willing to accept said engine and separator according to the terms of said contract, and to execute their notes therefor; but that plaintiff had not then put said engine and separator in good running order; that he then and there-refused to put them in good running order; and by — 254 — reason of plaintiff’s refusal to do and perform the conditions on his part aforesaid, defendants refused to accept said engine and separator ; that said engine and separator were much out of repair and were unfit to use in threshing grain, the purpose for which defendants desired to buy them, and of which- purpose plaintiff knew when he made the said contract with defendants ; and that in the condition in which plaintiff offered to deliver said engine and separator, they were entirely useless to defendants. “Further answering, say that they made the contract for the purchase of said engine and separator intending to use them in threshing wheat during the threshing season of 1884, for themselves and such farmers as might wish to employ defendants to thresh for them; that plaintiff knew this at the time for them to use said engine and separator, wherefore defendants pray judgment.” Plaintiff to this answer filed his replication. The venue of the case was thereupon changed to the circuit court of Bollinger county by consent, where in March, 1885, the case was tried by a jury, which resulted in a verdict and judgment for defendants, to reverse which the plaintiff appeals to this court, assigning as error: {1) The verdict of the jury was against the evidence at the trial; (2) the verdict was against the weight of evidence ; (3) the verdict was against the instructions given by the court for the plaintiff; (4) material mistakes by defendants, who were sworn as witnesses in their own behalf, and (5) newly-discovered evidence, and surprise at the evidence offered by defendants. Considerable time is expended by plaintiff in discussing in his brief the exclusion of evidence, but as the question was not properly saved in the motion for a new trial it will not be considered by this court. The motion for new trial does set out several grounds or reasons, not one of which could be held to include the objection that evidence was improperly excluded. The motion for new trial must specify the grounds upon which it is — 255 — founded. Bollinger v. Carrier, 79 Mo. 318. Such, objection was not called to the attention of the trial court by the plaintiff in his motion for new trial, and cannot be urged in this court. Putnam v. Railroad, 22 Mo. App. 589. As to the action of the court in refusing the instructions offered by the plaintiff, we need only remark that they were not justified by the evidence, and the trial court committed no error in refusing them. There was in this case some conflict of evidence, but upon a careful reading of all the testimony we are not prepared to say that the verdict is without proof to support it. On the contrary there is substantial evidence to support the verdict, and where such is the case, the trial courtcommits.no error in refusing to grant a new trial upon the evidence. Coudy v. Railroad, 13 Mo. App. 588; s. c., affirmed, 85 Mo. 79. On the part of the defendants, Devore, Seiler, Lancaster, and Frey, all testify that the machinery was not in good condition on July 22, 1884, the day oh which Albert offered to deliver it. Frey and Lancaster, both practical engineers, testify not only that the machinery was not in good condition, but that it was unsafe and dangerous. Lancaster says: “ Could not put water in the boiler when steam was over forty-five degrees. Valves of pumps were old and rusty and worn out; they had no connection with the boiler; they were stuck on to stop a leak, and were in no condition for use. The governors were heavy. Lower joint of smokestack was worn out. The engine made thirty revolutions per minute'; it takes one hundred and forty to thresh. No new teeth in cylinder. Bassett agreed to repair the pump. The brakes were not on and were necessary. I have been engineer about twenty years.” Frey testified: “Am machinist twenty years. Saw engine; had Hancock inspirator. The boss mechanic screwed up the nipple one-half to one inch and it leaked. He picked up some pump-packing and wrapped it. I thought it would blow out. It would not work if — 256 — steam was high. This was two o’clock on Tuesday, the last day I was there. The smokestack was an old one, bottom section full of holes; this checked the draft. No danger in the bottom joint. The engine was not in good repair with that smokestack. There was a piece of an old pump on it, in no repair to use the way it was; there were no connecting pipes. It probably would have worked if connected. I noticed the governors first day had no belt. Next day running at speed of thirty or forty revolutions. Governors did not handle engine. No brakes on engine ; were necessary.” The above extracts from the testimony certainly warranted the trial court in refusing to sustain the motion for a new trial on the theory that the verdict of the jury was against the evidence. Nor do we see that the verdict was against the instructions given by the court for the plaintiff, especially in view of the fact that the record utterly fails to show that any instructions were given by the court for the plaintiff. All the instructions were given by the court of its own motion, and on behalf of defendants, but none whatever on behalf of the plaintiff. And as no question is properly raised as to the instructions thus given, we shall not examine them, further than to say, ón the whole, they seem to have put the case before the jury in a very fair light. Upon the question of surprise, we think that the affidavit of Sanders furnishes no ground for a new trial. His testimony would be merely cumulative. He says these defendants asked him “about the engine, and that he said it was a good one ; that he had no difficulty in threshing wheat with it, though the governors were heavy ; never said that a new pump was necessary, nor a new smokestack,” etc., etc. Had this witness been produced at the trial, his testimony, as shown by the affidavit, would only differ from that of defendants as to the governors of the engine, and this point was amply covered by testimony other than that of defendants. The affidavit of Mr. Albert that, “he was sick on. the day of trial, and was unable to attend, and that he — 257 — fully expected to be at the trial,” does not furnish any-ground for setting aside the verdict, especially in view of the fact that Mr. Albert was the plaintiff and testified8 by deposition to about the same facts as are contained in the motion for new trial. “Thegeneral rule is, that each party must understand his case, and come prepared to meet the case made by his adversary. • Therefore, a party cannot be surprised that his adversary introduces testimony in support of the issues made by the pleadings, even though such testimony is false.” Haynes New Trials, par. 79. Counsel, at the time, did not profess any surprise at the testimony, or protest to the court that they were-not prepared to immediately meet it, or ask any delay to call witnesses thereto. The surprise never manifested itself until after the verdict of the jury. In Bragg v. City of Moberly, 17 Mo. App. 221, this-question is treated by Philips, P. J., in the following language: “If a party be surprised by an unforeseen occurrence at the trial, he should make his misfortune-known to the court instantly, and ask for a reasonable postponement to enable him to produce the countervailing proof. ‘ If he can relieve himself from his embarrassment by any mode, either by a nonsuit, or a continuance, or the introduction of other testimony, or otherwise, he must not take the chances of a verdict, but must at once fortify his position by resorting to all available-modes of present relief.’ ” Shellhouse v. Ball, 29 Cal. 608; Delmas v. Martin, 39 Cal. 558. Following the rule thus laid down, we think the-trial court committed no error in the case, and its judgment is affirmed. All concur.