Robinson & Co. v. Ligon

REYNOLDS, P. J. (after stating the facts). — ■ As the case will have to be remanded, it is unnecessary to pass on the action of the court in overruling plaintiff’s motion to try the issues involved in the fourth count of the answer, that is, the issue as to the consideration of the notes having failed and which demanded [640] a surrender and cancellation of the notes, as this point can easily be done away with and the objection obviated by the defendant striking out from its third amended answer the claim for affirmative relief involved in the cancellation of the notes which is all that it is claimed puts the case on the equity side of the court. If the defendant desires to so amend its third amended answer by doing this, the court should allow it to be done. To-avoid any question as to the right to so amend, we refer to what we have held in B. Roth Tool Co. v. Champ Spring Co., 122 Mo. App. 603, 99 S. W. 827; same case, 146 Mo. App. l, 123 S. W. 513. Of course if the defendant insists on a demand for a cancellation of mortgages and notes, which can only be done in equity, the cause should, as to this fourth count, be tried as in equity and not at law. The only errors necessary to be noted in reversing the judgment in the cáse are those to which attention has been directed in the statement of the case, namely, in allowing the defendant to testify as to his understanding in connection with the purchase of the machinery. It was purchased beyond question under the two orders referred to and as there is no fraud whatever charged in connection with the obtaining or execution of these contracts or orders of purchase in the first place, all previous understandings or arrangements between defendant and plaintiff or any of its agents are merged in the contracts. The sole question for determination in this case is whether or not the articles purchased are of the kind and quality as set up in the contracts or orders of purchase, the failure of consideration for the notes, if any, and whatever defenses the defendant may have in the case must be founded upon failure of the plaintiff to carry out and perform these contracts. As part of the sale contract, the catalogue was properly in evidence, but any parol evidence as to the representations or warrants is inadmissible. All the oral testimony that was admitted in an attempt, [641] to go outside of the sales orders was improperly admitted. The objection that the defendant was concluded by the express warranty contained in the contract and that he could not avail himself of the breach of it until he had complied with it on his part was under the pleadings properly overruled. The plea was that the defects complained of had been fraudulently concealed from defendant and that he did not discover them until long after the time specified in the contract for making reclamation on account thereof. The plaintiff was, therefore, not entitled to the instruction which it asked, practically directing a verdict for it. Referring to the instructions,' we remark that they are too voluminous and of a character tending to confuse any jury. We do not comment on them in detail as if the case is retried they may not be pertinent, any further than to say, as above, that the one asked practically directing a verdict for plaintiff, was properly refused. We will add here that there is a mass of irrelevant matter in the so-called abstract that must not appear if the case is again brought to this court. The thirty ®r more pages setting out the motion to try the cause as one in equity has no place whatever in the abstract. All that was necessary to save this point could have been condensed into one page at the outside. . For the errors above set out, the judgment in the case is reversed and the cause remanded. All concur.