Opinion
November 7, 1938.
1. — Sales. Contract of sale of combine which warranted combine would perform work for which it was intended, and which provided that if combine could not be made to fulfill warranty, seller would on buyer's return of combine to seller's dealer, furnish another combine or refund purchase price, and such acts would constitute settlement of transaction, was a valid contract; its terms fixed rights of parties and prescribed measure of damages for breach thereof.
2. — Sales. Where sales contract for combine provided that if combine failed to fulfill warranty that it was fit for use intended, upon buyer's returning combine at dealer's station, seller would furnish another combine or refund purchase price, and after combine failed to operate satisfactorily, when buyer offered to return combine for refund of purchase price, seller refused offer, but stated that they would make combine do the work and directed buyer to keep combine, such refusal and directions waived seller's right to insert on letter of the contract as to delivery.
3. — Sales. Where contract was silent concerning time allowed buyer to ascertain whether combine fulfilled warranty, buyer had reasonable time to ascertain facts in that regard.
4. — Sales. Seller's knowledge that combine was of light construction, and knew it could not be made to "perform the work for which intended," and adoption of course of conduct not justified by contract in refusing to furnish another combine or refund purchase price under contract was a breach of contract, entitling buyer to damages other than those in contract.
5. — Sales. Seller may not have benefit of enforcement of contract insofar as it provides a remedy for breach of warranty, terms of which it violated.
6. — Contracts. A party may not defend under a provision of a contract he has breached merely because performing party sues upon it.
7. — Sales. Where buyer in replevin action by seller against buyer, filed a counterclaim for breach of sale contract for breach of warranty therein, fact of filing counterclaim did not preclude buyer from recovering damages outside the contract, on ground that counterclaim kept contract alive and made it binding on buyer.
8. — Trial. Where it is claimed defendant's answers in deposition contradicted answers at trial, and defendant explained answers in deposition, jury could find defendant told the truth at trial, even if answers were unexplained.
9. — Appeal and Error. Where plaintiff in replevin action failed to object to giving instructions in form of verdict, he agreed that verdict returned in such form was a proper one, and waived right to attack verdict returned in conformity with such instructions on ground it was contradictory and self destructive, notwithstanding court may have given contradictory instructions on the merits as to verdict jury might return.
Appeal from Saline Circuit Court. — Hon. Charles Lyons, Judge.
AFFIRMED.
W.T. Bellamy and Watson, Ess, Groner, Barnett Whittaker for appellant.
(1) When respondent refused to pay for the combine because of alleged breach of warranty, appellant, upon tender to respondent of the cash paid and notes given by him upon the purchase price, became entitled to its possession. Respondent could not both keep the combine and refuse to pay for it. Kirk v. Seeley, 63 Mo. App. 262, 265; Bank v. Barts, 130 Mo. App. 635, 637; McCormick Machine Co. v. Brady, 67 Mo. App. 293, 295; J.C. Boss Engineering Co. v. Gunderson (Minn.), 209 N.W. 876. (2) The contract is valid and it alone fixed and prescribed the rights and remedies of the parties, and it furnishes the sole basis of respondent's rights, both as to the breach of warranty and the measure of recovery therefor, and the court should have given it that effect and erred in overruling appellant's demurrer to the evidence offered under respondent's counterclaim. Bank of Polk v. Wood, 189 Mo. App. 62, 69; Nichols-Shepard Co. v. Rhoadaman, 112 Mo. App. 299; Boyer v. Neel, 50 Mo. App. 26; Wood Machine Co. v. Bobbst, 56 Mo. App. 427; Kingsland Douglas Mfg. Co. v. Board Bros., 60 Mo. App. 662, 669, 670; Acme Harvesting Machine, Co. v. Gasperson, 168 Mo. App. 558, 571. (3) There was no waiver of the condition precedent, imposed by the contract upon respondent, of returning the machine to the company at dealer's station, and the court erred in overruling appellant's demurrer to the evidence offered under respondent's counterclaim which sought recovery of consequential damages. Steele v. Kansas City Southern Ry. Co., 265 Mo. 97; Crews v. Lombard (Mo.), 216 S.W. 512; St. Clair v. Hellweg, 173 Mo. App. 660. (4) Even if we assume there was a waiver by appellant of the condition imposed upon respondent by the contract that he return the machine to the company at the dealer's station if he claimed breach of warranty, still respondent could not recover consequential damages, because consequential damages were not within the contemplation of the contract but were expressly excluded by its provisions, and the court erred in overruling appellant's demurrer to the evidence offered under respondent's counterclaim, which sought recovery of consequential damages. Hadley v. Baxendale, 9 Ex. 353; 1 Sutherland on Damages (4 Ed.), sec. 45, page 171, and Vol. II (4 Ed.), sec. 671, page 2413; Helvetia Copper Co. v. Hart-Parr Co. (Minn.), 171 N.W. 272, 274; Bechtold v. Murray-Ohio Mfg. Co. (Pa.), 184 A. 49, 50, 51; Shaw v. Water Supply Storage Co. (Colo.), 128 P. 480, 483; Canon City Elec. L. P. Co. v. Medart Patent Pulley Co., 11 Colo. App. 300, 52 P. 1030; Sycamore Marsh Harvester Co. v. Strum (Nebr.), 13 N.W. 202; Boyer v. Neel, 50 Mo. App. 26, 29, 35, 36; Acme Harvester Mac. Co. v. Gasperson, 168 Mo. App. 558, 571; Bank of Polk v. Wood, 189 Mo. App. 62, 69, 70; Amer. Natl. Bank v. Allen, 195 Mo. App. 98, 100. (5) The verdict is inconsistent and contradictory. Johnson v. Labarge, 46 Mo. App. 433, 435; Ruth v. McPherson, 150 Mo. App. 694, 701; Ferd Bauer Engineering Co. v. Arctic Ice Storage Co., 186 Mo. App. 664, 670, 671.
Louis Buck, Perry G. Storts and Johnson Bacon for respondent.
(1) Appellant's statement "When respondent refused to pay for the combine because of alleged breach of warranty, appellant upon tender to respondent of the cash paid and notes given by him upon the purchase price, became entitled to its possession. Respondent could not both keep the combine and refuse to pay for it" in no way designates any error committed by the court and presents no assignment to this Court for review. Waters et al. v. Gallemore et al., 4 S.W.2d 870, 872; LeClaire v. LeClaire et al., 77 S.W.2d 862, 864; Hart v. Missouri State Life Insurance Co., 79 S.W.2d 793, 794. (2) Demurrer to the Evidence. The court properly overruled the demurrer to the evidence on respondent's counterclaim. (a) At Points II. III. and IV of appellant's assignments of error appellant does not set out the matters complained of nor point to the record where they may be found as required by rules 16 and 17 of this Court and such assignments should be disregarded. LeClaire v. LeClaire et al., 77 S.W.2d 862, l.c. 864; Seewald v. Gentry, 286 S.W. 445, l.c. 454. (b) Appellant's Point (2). The contract of purchase containing warranties did not furnish the sole remedy and measure of recovery of respondent purchaser, but for breach of warranty he could recover damages on his counterclaim and the court properly overruled the appellant's demurrer to the evidence on such counterclaim. 1. The contract of purchase was on a printed form, prepared by seller. It was ambiguous and should be construed favorably to respondent. Mayfield v. Richardson Mach. Co., 208 Mo. App. 206, l.c. 216; Interior Linseed Co. v. Becker-Moore Paint Co., 273 Mo. 433. 2. Respondent purchaser after the machine failed to fulfill the warranties, repeatedly, offered to return the same to seller, the seller refused to accept the same and respondent was entitled to recover all consequential damages on his counterclaim regardless of any provision in the contract purporting to limit his remedy to the return of the purchase money paid and notes executed. Mayfield v. Richardson Mach. Co., 208 Mo. App. 214. 3. When respondent purchaser offered to return the machine to appellant, after the breach of warranty and appellant's failure to make it fulfill the warranty, and appellant refused to accept the same, the respondent was not thereafter required to perform the futile act of returning the machine, f.o.b. dealer's station. Mayfield v. Richardson Mach. Co., 208 Mo. App. 214, l.c. 215; Tall v. Chapman, 66 Mo. App. l.c. 584; Smith v. Means, 170 Mo. App. 172; Osborne v. Mulliken, 88 Mo. App., l.c. 353-354; Palmer v. Reeves Co., 139 Mo. App., l.c. 480; Enterprise Soap Works v. Sayers, 55 Mo. App. l.c. 25. 4. Respondent's counterclaim declares on different breaches of the contract, including the breach in relation to the warranty as well as the breach of the agreement that appellant upon failure of the warranty and notice thereof would return to defendant the purchase price paid and notes executed, and there being substantial evidence of all of said breaches the demurrer was properly overruled. Mayfield v. Richardson Mach. Co., 208 Mo. App. 219. 5. Consequential Damages. The warranty warranted the machine to do the work it was intended to do and that it was well made and of good material. The respondent, on the breach of warranty was entitled to recover damages on his counterclaim for loss of his own crops and for loss sustained because he could not combine the custom crops for which he had contracted. Mayfield v. Richardson Mach. Co., 208 Mo. App. 214; Minn. Threshing Mach. Co. v. Bradford, 206 Mo. App. 609; Beyer v. Coca-Cola Bottling Co., 75 S.W.2d 648; Roberts v. Hardy, 89 Mo. App. 89; Machine Co. v. Gasperson, 168 Mo. App. 570; Plattner v. Plattner, 116 Mo. App. 404. (c) Appellant's Point (3). 1. The contract was ambiguous, it was prepared by appellant on its printed form and under a fair and liberal construction the contract did not impose upon respondent as a condition precedent, the return of the machine f.o.b. cars dealers station, before appellant was required to make its election or choice to and offer to return the purchase price paid and notes executed by respondent. Osborne Co. v. Henry, 70 Mo. App. 25; Anglo-American Mill Co. v. Twin City M. Mfg. Co., 35 S.W.2d 983 and 986; Southwestern Freight Cotton Express Co. v. Plant et al., 45 Mo. 517; Ficklin v. Tinder, 161 Mo. App. 283; Stresovich Co. v. Kesting, 63 Mo. App. 57. 2. In its petition in this case appellant bases its cause of action in replevin solely on the ground that the machine was defective and that it had the right to rescind the contract, return the purchase price and receive back the machine. The petition states that respondent claimed the machine had failed to fulfill the warranty and that appellant immediately elected "under the provisions of the warranty" to accept the return of the machine and tendered and offered to return the purchase price paid and notes executed. Appellant's construction of the warranty that it had to make this election when the machine proved defective before any offer by respondent to return the machine as it now contends forces the construction of the contract that appellant did have to elect to rescind the contract before the respondent was required to offer to return the machine. Scotten v. Metropolitan Life Ins. Co., 81 S.W.2d 313: Thomas v. Utilities Bldg. Corporation, 74 S.W.2d 578; Marden v. Radford, 84 S.W.2d 947. 3. After respondent five times had offered to return the machine and the appellant had refused to accept same, the appellant requested respondent to keep same and it continued to try to repair it. The appellant thus waived the right to demand the return of the machine. Osborne Co. v. Henry, 70 Mo. App. 28; Palmer v. Reeves Co., 139 Mo. App. 480. 4. Appellant knew the machine had failed to fulfill the warranty and after the harvest was over and respondent had repeatedly offered to return the machine, the appellant on October 21, 1935, demanded payment of the purchase price notes and it thus waived any rights it had, if any, to return the purchase price paid and notes executed in satisfaction of all claims of respondent. Osborne v. Millikin, 88 Mo. App. 350; Palmer v. Reeves Co., 139 Mo. App. 480. 5. Even if respondent as a condition precedent had to return or offer to return the machine f.o.b. dealer's Station before appellant had to elect whether it would furnish a new machine or return the purchase price, appellant's refusal to accept the return of the machine and its continued effort to repair an admittedly defective mechanism of the machine was inconsistent with any intention on its part to demand a return of the machine and it thus waived such right. Murmann v. Wissler, 116 Mo. App. 403. 6. Although appellant had been repeatedly asked to take the machine back and return the purchase price paid and notes executed by respondent so he could secure another machine which it refused to do, it did not offer to return such purchase price and notes until at the earliest in September, 1935, long after the harvest season was over and respondent's damages had been sustained. This election to rescind the contract and offer to return made by appellant was not made in a reasonable time and it thus waived any right, if any, to return the purchase price paid and notes executed in full satisfaction of respondent's damages. Quigley v. Bartlett, 260 S.W. 497; McCall v. Atchley, 256 Mo. 49; Meyer Milling Company v. Baker, 10 S.W.2d 670; World Pub. Co. v. Hull, 81 Mo. App. 277. (d) Appellant's Point (4). 1. Respondent repeatedly offered to return the machine and appellant refused to accept the same. This refusal was a waiver of any right appellant had, if any, to return the purchase price paid and notes executed in full release of all damages. The warranty warranted the machine to do the work it was intended to do and appellant knew what work was intended. Respondent was therefore, entitled to recover on his counterclaim all consequential damages sustained because of the breach of warranty. Mayfield v. Richardson Mach. Co., 208 Mo. App. 219; Minn. Threshing Mach. Co. v. Bradford, 206 Mo. App. 609, l.c. 614; Beyer v. Coca-Cola Bottling Co., 75 S.W.2d 648; Roberts v. Hardy, 89 Mo. App. 89; Murrmann v. Wissler, 116 Mo. App. 404; Machine Co. v. Gasperson, 168 Mo. App. 570. 1. Weight of Evidence. All of the assignments of error made by appellant at its Points II, III, and IV, relate to the weight of evidence. This court will not pass upon the weight of evidence. Henry v. Cleveland C.C. St. L. Ry. Co., 61 S.W.2d 340; Sanders v. Kansas City, 107 S.W.2d 795; Stanfield v. Trading Post Co., 106 S.W.2d 952. 2. The Demurrer. In determining whether plaintiff's demurrer to the evidence on respondent's counterclaim should have been sustained the whole evidence will be searched and respondent given the benefit of all facts tending to support his theory, with every reasonable inference therefrom while contradicted evidence favorable to appellant will not be considered but will be excluded. Clason v. Lenz, 61 S.W.2d 729; Pogue v. Metropolitan Life Ins. Co., 107 S.W.2d 144. 3. Credibility of Witnesses. The credibility of the witnesses is a question for the jury to pass on and this court will not pass upon such question. Sanders v. Kansas City, 107 S.W.2d 797. (3) The verdict of the jury and his judgment rendered thereon should not be disturbed. (a) The assignment of error at Point V of Appellant's Points and authorities does not designate any error of the trial court, nor point to the record where the matter discussed may be found as required by Rules 16 and 17 of this court and should be disregarded. LeClaire v. LeClaire et al., 77 S.W.2d 862; Sewald v. Gentry, 286 S.W. 445, 454; Waters et al. v. Gallemore et al., 41 S.W.2d 870, 872. (b) The judgment on the petition and on the counterclaim is entire and must stand or fall as one judgment. Stockman et al. v. Leach and Fruits, 210 Mo. App. 407; Ruth v. McPherson, 150 Mo. App. 704. (c) A judgment will not be reversed for irregularities in the verdict when it appears to be for the right party and not excessive. Beiler v. Devoll, 40 Mo. App. 251-255; Odell v. Hurt, 106 S.W.2d 528; Peterson v. Transit Co., 199 Mo. 331. (d) Appellant cannot take advantage of errors in the verdict awarding combine to appellant when such error was favorable to appellant. McDermett v. Kessler, 240 Mo. 278, 290; Schwartz v. Nat. Accident Society, 216 Mo. App. 63, 267 S.W. 87, 90; Jones v. West Side Buick Auto Co., 93 S.W.2d 1088. (e) Appellant was in no way prejudiced by the form of the verdict awarding to it the combine and at the same time awarding defendant, general damages. 1. Appellant claimed right to possession of the combine by virtue of the terms of the contract, only which contract was unilateral and did not bind the respondent to return the combine. Evans v. O'Fallon, 262 S.W. 433; Moore v. Emmerson, 63 Mo. App. 137; Towner v. Pauly, 67 Mo. App. 637. 2. Even if the contract be construed as bilateral and binding upon the respondent the return of the combine f.o.b. car dealer's station cannot be construed as a condition precedent in view of the ambiguity of the contract. Linseed Co. v. Paint Co., 273 Mo. 433; Mayfield v. Richardson Mach. Co., 208 Mo. App. 206 l.c. 216. 3. The court will not construe a condition to be a condition precedent, where to do so would work an injustice as it would in this case. Springfield Seed Co. v. Walt, 94 Mo. App. 76; Stockham et al. v. Leach and Fruits, 210 Mo. App. 407. 4. The language of this contract is ambiguous and appellant by exercising the option given it by the contract and by stating in its petition that it immediately exercised such option before the respondent returned the combine, construed the contract and such construction will be accepted by the court. Thomas v. Utilities Bldg. Corporation, 74 S.W.2d 578; John Deere Plow Co. v. Cooper, 91 S.W.2d 145; Scotten v. Metropolitan Life Ins. Co., 81 S.W.2d 313; Marden v. Radford, 84 S.W.2d 947. 5. In any event appellant was required to tender back the notes and money, or furnish another combine within a reasonable time after notice that the combine failed to fulfill the warranty and its failure to make it fulfill same, no definite time for such tender being stipulated. Meyer Milling Co. v. Baker, 10 S.W.2d 670. 6. The trial court could have found that appellant did not act within a reasonable time "as a matter of law" and directed a verdict for defendant on both counts of his answer, the time of such tender being undisputed. Emery et al. v. Shoe Co., 167 Mo. App. 703, l.c. 707; Rubber Co. v. Rubber Co., 74 Mo. App. 266, l.c. 271; Publishing Co. v. Hull, 81 Mo. App. 277, l.c. 279; Long v. Machine Co., 158 Mo. App. 662; Turner v. Snyder, 139 Mo. App. 656 l.c. 662. 7. A directed verdict could have been given for respondent on plaintiff's petition and on both counts of respondent's counterclaim and appellant cannot object to the verdict awarding it possession of the combine. Whelen v. Weaver, 93 Mo. 422, 430; Haven v. Missouri Ry. Co., 155 Mo. 216; Smith v. Rose, 192 Mo. App. 582; Hall v. Small, 178 Mo. 635; Koehler v. Franklin Pav. Co., 269 S.W. 401; Leahy v. Davis, 121 Mo. 231, 236. 8. The verdict was in accord with an instruction given by the court of its own motion and appellant did not except to the instruction nor complain thereof in its motion for a new trial, thereby failing to preserve any error for review. Bradley v. Becker, 296 Mo. 548, l.c. 560; Compressed Air Co. v. Fulton, 166 Mo. App. 11; Green v. Terminal R.R. Ass'n, 211 Mo. 30. 9. The rule as to inconsistent verdicts being self-destructive does not apply where such verdicts are brought about by errors of law. Stith v. J.J. Newberry Co., 79 S.W.2d 459.
This is an action in replevin to recover the possession of a combine sold by plaintiff to the defendant under a written contract dated May 6, 1935.
The defendant filed an answer and a counterclaim. In the counterclaim defendant sought to recover damages for the alleged breach of the contract. The sufficiency of the pleadings is not questioned by either party. The contract recites the purchase price was $155 cash, plus freight, and three notes executed by defendant in the total amount of $1064.
Trial to a jury resulted in a verdict for the plaintiff for the recovery of the possession of the combine and for the defendant on his counterclaim in the sum of $800. From the judgment rendered on the verdict the plaintiff has appealed.
The pertinent provisions of the warranty in the contract of sale follows:
"That all of said machinery is well made and of good material, and when properly assembled, adjusted and operated will perform the work for which intended. . . .
"The company further warrants and guarantees that each machine or implement shall be in good working order when delivered, except for such setting up and adjustment as is ordinarily necessary after shipment, and that, when properly set up and when operated in accordance with the printed instructions furnished by the Company, it will fulfill the terms of this warranty. . . .
"If within three days after its first use, the machinery or implement, with proper care and under favorable conditions, shall fail to fulfill the warranty, the Purchaser shall immediately give notice, by registered mail to the Dealer and to the Company Division Office through which the goods were ordered stating wherein the machine or implement has failed, and shall allow a reasonable time for a competent man to be sent to put it in good order, and shall render necessary and friendly assistance to operate it. If the machine or implement cannot be made to fulfill the warranty, the Dealer upon written instructions from the Company's Division Office will either furnish another machine or implement with the same warranty or, at the option of the Company, all cash and notes paid on the purchase price shall be refunded to the Purchaser, upon his returning to the Company the rejected machine or implement, F.O.B. cars Dealer's station and either of which acts shall constitute a settlement in full of the transaction, and operate as a release of all claims of both Purchaser and Dealer against the Company arising out of this contract." . . .
Prior to the purchase the defendant told the plaintiff that he wanted the machine to combine his own crops and the crops of seven other farmers.
The machine was made ready for operation by plaintiff's local dealer about noon on June 27th, and operation thereof was begun about the middle of the afternoon of that day. Soon thereafter a flange on a bushing, which controlled the raising and lowering of the header, broke. The plaintiff's dealer supplied a new part and he and the defendant put the combine in operation on the morning of the next day. During the forenoon of that day the safety clutch slipped and the auger wrapping made trouble and "practically nothing" was accomplished, and "right after dinner the safety clutch on the main header drive and the hub of the sprocket on that drive broke." The plaintiff furnished new parts for the broken parts and defendant, on the afternoon of June 29, attempted to operate the machine. At that time Mr. Rosentreter, plaintiff's salesman, was present and operated the machine. After "going a short distance" the safety clutch, which had been replaced about noon of that day, broke "in many pieces." Whereupon defendant said to Rosentreter that "he would have to accept the machine and return my money and notes so I could purchase a machine that would operate more satisfactorily. It had been in the field three days and had operated only a few hours." In reply Rosentreter said, "we will not accept the machine, we will make it do the work for you." On the next day defendant went to plaintiff's office in Kansas City and talked with H.K. Nelson, plaintiff's assistant division manager, told him of the conversation with Rosentreter and said, "I wished they would accept the machine back and give me my money and notes back so that I could secure another machine that would operate satisfactorily." Nelson "refused to accept the machine, said they would make it do the work and he would furnish new parts."
Defendant continued his efforts to operate the combine until about August 22, but never "operated as much as a half day without breaking or causing quite a bit of trouble."
There was evidence that plaintiff, at the time the machine was delivered to defendant, or shortly thereafter, knew the combine was "built light," would not do and could not be made to do the work for which it was intended.
In the cross-examination of defendant it was shown that in his deposition he testified he never brought the machine "in here" and offered to return it to Mr. Phillips, plaintiff's local dealer; that he never offered to return the machine to the "Minneapolis-Moline Implement Company;" that he was not, at the time the deposition was taken, willing to return the combine to plaintiff unless his damages were paid.
Defendant at the trial explained said answers by stating in effect that he thought the time referred to "was after the harvest was over;" that he thought the questions in which Phillips and plaintiff, by its full corporate name, were mentioned did not refer to Nelson and Rosenstreter.
The substance of plaintiff's evidence was that defendant never offered to return the combine; that when request for payment of a matured note was made the defendant refused to pay the note and claimed damages for his loss; that in September and thereafter the plaintiff offered to return to the defendant the notes and cash payment upon the latter "returning it (combine) to us and without payment of any damages" and "let that be the full and complete settlement of the transaction." Nelson, for the plaintiff, testified that he knew defendant was having trouble with the combine. When asked why he had not tendered to the defendant the notes and cash paid for the combine before the close of the harvest season, said, "well, I don't know why I didn't make the offer."
The plaintiff does not claim it furnished or offered to furnish another combine to the defendant. Nor does the plaintiff claim that the failure of the combine to do the work for which it was intended was due to any neglect of the defendant.
The plaintiff contends that when defendant refused to pay for the combine, it, upon tender of the purchase price, became entitled to the possession of the combine. Whether the plaintiff was or was not entitled to the possession of the combine is at this time of no moment for the reason the judgment gave the possession of the combine to plaintiff and the defendant has not assailed the judgment.
The main question for determination is whether or not the court erred in refusing plaintiff's requested instruction in the nature of a demurrer to the evidence offered on the counterclaim.
In presenting that question plaintiff says that the contract "fixed and prescribed the rights and remedies of the parties, and it furnishes the sole basis of respondent's rights, both as to the breach of warranty and the measure of the recovery therefor;" that it did not waive any of the conditions of the contract relating to the duty of the defendant to return the combine to the dealer's station; and that even if there were a waiver with respect to return of the combine, still plaintiff was not entitled to recover consequential damages because such damages were excluded by the terms of the contract and were not within the contemplation of the contract.
The contract was a valid one. Its terms fixed the rights of the parties, and prescribed the measure of damages for a breach thereof. [Bank of Polk v. Wood, 173 S.W. 1093, 189 Mo. App. 62; Nichols v. Rhoadaman, 87 S.W. 62, 112 Mo. App. 299.]
The rule announced in the cases just cited precludes recovery on the counterclaim unless the plaintiff waived or breached the provisions of the contract on which it now relies. The plaintiff does not claim the provisions requiring notice by registered mail of the failure of the combine to fulfill the warranty was not waived. Following repeated failures of the combine to operate satisfactorily the defendant offered to return it in exchange for the purchase price. The defendant did not say he would deliver the combine at the dealer's station nor did he say that he would not deliver it there. In fact no word was spoken concerning the place of delivery. When the offers to return the combine were made, plaintiff, speaking through its agents, Nelson and Rosentreter, whose authority to speak and act for it is not questioned, refused such offer, not because defendant failed to say he would deliver the combine at the place stipulated in the contract, but upon the sole ground that they would make "it do the work." Thus plaintiff's authorized agents directed defendant not to deliver the combine at dealer's station or elsewhere but to keep it in the field and at the place of work. Such directions waived the right plaintiff had to require delivery according to the letter of the contract. [Palmer v. Reeves and Company, 139 Mo. App. 473, 122 S.W. 1119.]
The contract says that if the combine "cannot be made to fulfill the warranty" the defendant could return it to plaintiff and receive the purchase price or plaintiff could at the option furnish another machine. The contract is silent concerning the time allowed plaintiff in which to ascertain whether the combine could or could not be made to fulfill the warranty. Therefore, plaintiff had a reasonable time in which to ascertain the facts in that regard. The plaintiff knew the combine was "built light" and of defective material; that some part of it broke every time effort was made to operate it. From the beginning plaintiff knew the combine was not fulfilling the warranty. With this knowledge it refused to accept return of the combine, retained the purchase price, did not offer to furnish another combine and continued throughout the harvest season to assure defendant that it would make the combine do the work. These assurances were given when plaintiff knew, or at least the jury could find it knew, that the combine could not be made to "perform the work for which intended." It is plain that plaintiff adopted a course of conduct not justified by any provision in the contract. Such a course was therefore a breach of the contract and, for that reason, plaintiff, in its defense to the counterclaim, could not have the benefit of the provisions of the contract relating to the measure of damages. [Motor Part. Inc., et al. v. Freeman, 62 S.W.2d 479.]
Plaintiff cites cases in each of which a counterclaim, the same in legal effect as the contract here involved, was enforced as written on behalf of the seller. Those cases involving situations where the seller violated the terms of the contract, that is, where the seller breached the contract wherein a remedy for a breach of the warranty was provided, are not in harmony with Mayfield v. Richardson Machine Co., 208 Mo. App. 206, 214, a decision by this court, holding in effect, that the seller may not have the benefit of the enforcement of a contract insofar as it provides for a remedy for a breach of the warranty, the terms of which it violated. The defendant having performed every provision of the contract, the performance of which was not waived, was entitled to have the question of consequential damage submitted to the jury. [Mayfield v. Richardson Machine Co., supra; Minnesota Threshing Machine Co. v. Bradford, 206 Mo. App. 609, 227 S.W. 628.]
In support of its contention that plaintiff may rely upon the portion of the contract providing the remedy to the buyer in case of a breach of the warranty by the seller, which there was evidence tending to show that it violated, it cites authorities which it claims support its view that because defendant, in his counterclaim, sued upon the contract he kept alive the provision of the contract providing, in effect, that a violation of it by the plaintiff should afford defendant no remedy except, in effect, a rescission. These authorities do not hold that a party may defend under a provision of a contract he has breached merely because the performing party sues upon it. In the cases cited it is held:
"The law is that, where the promisor before the time of performance expressly renounces his contract, the promisee is thereby entitled either to treat the contract as broken and sue at once for its breach without averring an offer or readiness to perform, or he may wait until the time of performance has expired, and then sue for the consequences of nonperformance. In the latter case the contract would be kept alive for the benefit of both parties." [Mfg. Co. v. McCord, 65 Mo. App. 507, 508. See, also, Bignall Keeler v. Mfg. Co., 59 Mo. App. 673, 681.] The rule stated in these cases is amplified in Volume 2 of the Supplement of Page on Contracts, sec. 2896, reading as follows:
"If the party who is not in default elects to treat the contract as still in force in spite of this renunciation by the adversary party, he may do so as long as such conduct on his part does not aggravate damages; but if he does so, he keeps the contract in force for the benefit of both of the parties thereto, and not merely for his own benefit. Accordingly, the party who renounced such contract may take advantage of any subsequent facts which would have operated as a discharge if he had not renounced liability thereunder. If by its terms a contract is to end upon the happening of a certain event, the party who has renounced the contract before such event has happened may take advantage of the happening of such event if the adversary party elects to treat the contract as in effect. If the party who is not in default elects to treat the contract as in force, and such contract becomes impossible of performance after such renunciation but before the time fixed for performance, as by reason of the outbreak of war which makes performance impossible, such facts operate as a discharge."
It is quite apparent that these authorities have to do with situations entirely unlike the one in the case at bar. Here nothing intervened of material moment between the time of plaintiff's breach of the contract and the expiration of time of the performance thereof. In fact the breach and the expiration of the time of performance occurred approximately at the same time.
There is nothing inconsistent between our holding herein and the well established rule that a person cannot accept and reject the same instrument or, having availed himself of it as to part, defeat its provisions in any other part. [See Squier v. Evans, 127 Mo. 502, 512.] This case is peculiar in its facts. There was evidence tending to show that plaintiff not only breached the contract in respect to the warranty of the machine but, as before stated, violated the provision of the contract providing the remedy in case of a breach of the warranty. The inapplicability of the rule laid down in the case last cited to the facts in the case at bar is made plain in Mayfield v. Richardson Machine Co., supra.
The plaintiff argues that the answers made by the defendant when his deposition was taken contradicted his evidence in the trial and, therefore, "the jury ought not pass upon his credibility."
As stated above, the defendant explained the answers in his deposition. Even though the answers were not explained the jury could find defendant told the truth at the trial. [Belzer v. Sears, Roebuck Co., 76 S.W.2d 701.]
The plaintiff argues the verdict is inconsistent and contradictory. The court submitted to the jury several instructions on the form of the verdict. On behalf of the defendant the court submitted a form whereby the jury might find that defendant was entitled to the possession of the harvester and that the value of the same was ____ dollars and, further that they might find for defendant on his counterclaim and assess his damages at ____ dollars. Also that they might find for defendant on plaintiff's cause of action and for plaintiff on the counterclaim. Also that they might find for plaintiff on its cause of action and on the defendant's counterclaim. The court, on its own motion, submitted a form of verdict which the jury apparently used with some additions in the wording. The verdict reads as follows (the jury using the court's form except as to the words in italics):
"We, the jury, find for the plaintiff on plaintiff's petition and at the time of the commencement of this suit plaintiff was entitled to the possession of the combine described in evidence, and further assess value of said combine, on Jan. 19, 1937, at the sum of $600, on return of defendant's notes and cash; and we find for defendant on the defendant's counterclaim and assess his damages at the sum of $800."
In his original brief plaintiff attacks the verdict on the ground that it is contradictory and self-destructive. It is claimed therein that it is contradictory in that defendant's instructions on the merits required the jury to find that he "asked plaintiff to take said machine back and return the money paid and notes executed for the purchase price so that defendant could secure another machine," and told the jury that if they so found their verdict should be for defendant on plaintiff's cause of action and on defendant's counterclaim while, on the other hand, plaintiff's instruction on the merits required the jury to find that defendant "did not at any time offer to return to the plaintiff the combine in question without payment of damages" and in such case required them to find for plaintiff for the possession of the combine and plaintiff upon defendant's counterclaim.
Assuming that the verdict in response to these instructions on the merits was contradictory nevertheless plaintiff is in no position to complain.
Plaintiff is in no position to attack the verdict on the grounds mentioned for the reason it is in conformity, insofar as effects the point now made, with the court's instruction on the form of the verdict, to the giving of which instruction the plaintiff did not object or except. By failing to object or except to the giving of this instruction, plaintiff, it must be held, agreed, in effect, that a verdict returned in such a form would be a proper one. [McCormick v. Hill, 104 Mo. App. 544; Stevens Harvesting Co. v. Knights of M.M., 153 Mo. App. 196; Price v. Hallett, 138 Mo. 561; Ottofy v. Trust Co., 197 Mo. App. 473.]
While the verdict is not in the exact form of the court's instruction the theory of the finding and the instruction are the same. Both the instruction and the verdict were upon the hypothesis that there might be a rescission of the sale and damages allowed to defendant. The difference between the instruction and the verdict is merely that the former provided for partial and the latter entire rescission. Plaintiff, by failing to object or except to the giving of the court's instruction agreed, in effect, that a verdict returned on the inconsistent theory, if any, allowed by the court's instruction, is in no position to complain. The same answer may be given to plaintiff's contention that the verdict is invalid because it allows rescission and, at the same time, damages for breach of contract. We do not find that the cases cited by plaintiff on this point involved a situation where the losing party consented, in effect, that a verdict, inconsistent in its terms, might be returned by the jury.
The judgment is affirmed. All concur.