Crouch & Sons v. Morgan

GOODE, J. (after stating the instructions). — This action was instituted before a justice of the peace on two promissory notes for $50 each, one dated Sep [614] tember 16th and one December 19, 1904, and both dne on or before October 1, 1906, payable to the order of plaintiffs, with six per cent interest from their dates. Defendants had judgment before the justice and plaintiffs appealed to the circuit court, where defendants’ counsel orally made a statement of the defense, Avhich, in substance, set forth the facts of the case. The notes were given for one share in a German coach horse plaintiffs were selling for $2,400 to different shareholders of a company plaintiffs proposed to have incorporated. Defendants subscribed for one-half share each, or one share of $100, and gave the two notes in payment; each defendant being principal on one of the notes and surety on the other. No certificate of stock was delivered to defendants, and the evidence is vague as to whether, in truth, the company was incorporated. Some testimony looks like a certificate for defendants was sent to another man named Newby; whereas other evidence indicates the company was not formed. This, however, is immaterial. To induce defendants to subscribe for a share in the proposed company, whose capital was to consist of the horse, the agent of plaintiff gave certain warranties regarding the qualities of the horse, which warranties will be ascertained by reading the ’instructions. Suffice to say the horse when delivered wholly failed to correspond with the warranties and while this is not admitted by plaintiffs, neither is it disputed, There was an understanding that if the horse turned out not to be as warranted, he might be returned to plaintiffs and another selected in his stead. The horse was turned over to the company, or the subscribers for shares in the company, early in 1905, and at the close of the season of that year, the men owning shares met and wrote plaintiffs they wished to return him as he was unsatisfactory and had fallen short- of the warranties given regarding his qualities. Instead of taking him back, plaintiffs wrote requesting the shareholders to keep him- another year and said if he still [615] proyed unsatisfactory, another horse might he selected in his place. In connection with this letter a written guaranty of qualities was sent to the shareholders, hut this guaranty differed in its terms from the original oral warranty and so was not accepted. The horse remained in Barry county in the custody of some agent of the shareholders. .'Afterwards an attorney for plaintiffs made one or two trips to said county to collect the notes given by the subscribers. On the first trip he said the notes had been sold and assigned to an innocent purchaser for value in Indiana, and on this occasion the defendants, in view of said fact, offered, not only to relinquish their interest in the horse, but pay one of the notes if plaintiffs 'would get the other and return it to them. No testimony was introduced in the case except for the defendants and it is uniform that the horse totally fell short of the warranties; that defendants offered to relinquish their interest in him and that all the shareholders had offered to return him. Moreover, the evidence strongly inclines to prove he was worthless, and it is in testimony he was not worth his feed. Complaint is made of the rulings on the instructions, the jury having returned a verdict for defendants. The instructions will accompany the opinion. The one given at defendants’ instance is an accurate statement of the law. Though defendants could not retain their interest in the horse if he was worth anything, and at the same time defeat totally the notes given for the purchase price, the entire evidence shows they did what they could toward returning their interest to plaintiffs. Hence their defense was good, even granting the animal-was of some value, which there is scant, if any, evidence to prove. [Walls v. Gates, 4 Mo. App. 1, 6 Mo. App. 242; McCormick, etc., Co. v. Brady, 67 Mo. App. 292; Brown v. Weldon, 27 Mo. App. 251, 99 Mo. 564.] The instructions plaintiffs requested and the court refused, cut out the defense unless defendants had returned the horse. These instructions were inapplicable to the evi616 deuce and were rightly refused. It is manifest defendants, who were only two out of numerous purchasers of shares, could not of themselves return the animal, and the evidence is conclusive they offered to turn back their share or interest in him to plaintiffs. It is equally conclusive the shareholders met as a body and offered to return him. The judgment is affirmed. All concur.