Summary
Appeal from Barton Circuit Court, Hon. Charles Gr. BurtoN, Judge.
Statement of case by tbe court.
This is an action, begun by attachment, for a breach of warranty in the sale of a printing press, known as the “ Prouty Power Press,” sold by the defendants to the-plaintiff. The alleged guaranty and contract of sale areas follows:
“Guaranty and contract for sale and purchase of a No.
“ 3 Prouty Power Press.
“Madisow, Wis., 188 .
“W. G. Walker & Co. do hereby agree to furnish W. T. Craycroft a No. 3 Prouty Power Press, on, or before ., 188.., and we guarantee the same as follows: ‘ Said press shall, if set up by our agent, or rightly and perfectly set up by any other party, in the hands of a competent pressman, make a good, even impression, give a good table ink distribution ; work with a close margin, and register, and print anything from a full newspaper form down to small posters ; and will, if necessary, with proper care and good pressmanship, print letter heads and other small work, doing it in a first-class manner. We also guarantee the press to be thoroughly and mechanically built, and to be durable, and to run as easily as other printing presses having same size forms.’ Said press to be furnished with rubber blanket, one set ink roller cores, and one set ink roller cast, and four wrenches, and with' the following-extras : One job fountain.
“[Signed] .
“Lamar, Mo., August 27, 1883.
“ On the above guaranty of Walker & Co., W. T. Craycroft, of Lamar, Missouri, does hereby order of Walker & Co. a No. 3 Prouty Power Press, the same to be skipped to Lamar, Missouri, at once. And I do hereby agree to pay to Walker & Co. for said press, the sum of six hundred and ninety dollars, as follows :
“$150.00 to be paid in cash ; $91.25 in a note, running four months with interest at ten (10) per cent., and $91.25 in a note, running seven months with interest at ten (10) per cent., and $91.25 in a note, running ten months with interest at ten per cent, and $91.25 in a note, running thirteen months with interest at ten per cent., and $175.00 in a hand press, described herewith,, to be shipped to Walker & Co., Madison, Wis. These' notes are payable at any time during the year, at option of purchaser. And I do hereby further agree to deposit said cash and said notes in E. Egger & Son’s bank, at Lamar, Missouri, on, or before, shipment, 188... Said cash and notes shall be deposited subject to the order of Walker & Co., Madison, Wis., whenever they present to said bank the proper shipping receipt, showing press to have been delivered on board cars, as above directed.
“It is hereby further agreed by me that, within fifteen days after the receipt of the press (if said press is-as guaranteed), I will, at my own expense, execute a first chattel mortgage on the above press, for $365.00, in favor of Walker & Co., to cover the above notes, and that I will have the same properly recorded, at my own expense, in the clerk’s office, as demanded by law. And I will, also, insure the above press, in a good, reliable-company, to the amount of the notes, and turn over-said policy, as further security, to Walker & Co., or their order.
“Ido further agree that, in case I am unable to-make said press work satisfactorily, within fifteen days, from its receipt by me, I will notify Walker & Co., and ask them to set up said press free of expense to me. We do, also, agree to have in readiness proper forms for testing said press as soon as it is set np by the authorized agent of Walker & Co., and will pay said expenses to the agent setting np the press, if so directed by Walker & Co. And said Walker & Co. do hereby agree that, in case I fail to make the press work satisfactorily, as guaranteed, they will, within thirty days, put the press in good working order, as guaranteed (provided I have not broken, or injured, said press), or replace it with a new press that will work, or return the cash or notes paid over to them, and, also, refund the actual amount of cash paid out by me for freight.
“It is hereby expressly-understoodand agreed, by the purchaser, that the sole right and title to said Prouty Power Press shall be in Walker & Co. till all the requirements and agreements of their contract have been fully and faithfully executed by said purchaser.
“ It is, also, further expressly understood and agreed that, after Walker & Co. have safely delivered said press on board the cars (at Madison, Wisconsin), carefully boxed, and correctly directed, they are fully released from all liability or responsibility for the breakage, while in transit or delivery.
“[Signed] W. T. Crayoróet,'Purchaser.
“ R. M.-E. Cooper, Agent.
“Walker & Company.
“ See contract. This contract not good or binding upon Walker & Co., unless countersigned in writing by them.”
On the trial, before a jury, the plaintiff offered and read in evidence the foregoing paper, against the objection of the defendant. The ground of the objection was, that the guaranty, on the part of the defendant, was not signed.
The plaintiff’s evidence tended to show that the machine was not in accordance with the representations contained in the guaranty; that it failed in many important particulars to do certain character of work specified. The evidence also showed that the plaintiff received the machine, and nsed it for about six months before he gave any notice, or made any complaint of its failure to afford satisfaction. His explanation of this delay was, that the machine did well enough on the kind of work he used it on up to that time ; but when, at the end of that time, he undertook to do the work on it of book printing, it failed to give satisfaction in this respect. Notice was then given to the local agent at Lamar, who attempted to make it work, but without success. This agent testified that the employes in the printing office had “ doctored” the type, or something, “in order to put up a job on him.” This, however, was denied by plaintiff’s witnesses.
There was much evidence offered on both sides as to the quality of the machine. But as the case is determined on the construction of the contract, it is not necessary to make further statement of the evidence.
The court gave, at plaintiff’s instance, the following instructions:
“1. The court instructs the jury that the contract and guarantee, read in evidence, bound the defendants, Walker & Company, to furnish to plaintiff such a press as if set up by defendants’ agent, or rightly and perfectly set up by a competent pressman, would make a good, even impression, give a good table ink distribution, work with a close margin and register, and print anything, from a full newspaper form down to small posters, and would, if necessary, with proper care and good pressmanship, print letter heads and other small work, doing it in a first-class manner ; and further guaranteed said press to be thoroughly and mechanically built, and to be durable, and to run as easily as other printing presses having and printing same sized forms. Now, you are further instructed that, if said press was properly and perfectly set up and put in operation, and that it failed in any of the particulars men-tionecl in said guaranty, or in all said particulars, tlien you will find tlie issues for the plaintiff.”
“2. If you find for the plaintiff, you mil assess his damages at the sum of six hundred and ninety dollars, less such sum as you shall find, from the evidence, the-press was actually worth for the purposes for which it was bought and is used, together with six per cent, interest per annum, upon the amount so found due, from December 31, 1884.”
The jury returned a verdict for the plaintiff. Defendant has appealed.
I. The so-called guaranty should not have been admitted in evidence. There was no allegation in the petition that it was ever executed. There, was no evidence that it had been executed, and the paper itself,, on inspection, showed that it had not teen executed.
II. When a witness • is produced to testify as an expert, his qualification, as an expert, must be disclosed. Stonam v. Waldo, 17 Mo. 489 ; Koons v. Railroad, 65 Mo. 592 ; Wayner v. Jacoty, 26 Mo. 530; Paige v. Parlcer, 40 N. II. 47. And if his grounds of knowledge appear to be slight he will be rejected. Nute v. Nute, 41 N. H. 60.
III. General reputation, or the reputation of a person in a particular locality, is not admissible for the purpose of showing that he is a competent mechanic,, and that he is capable of properly performing any work of art, science, or trade, and the testimony of Sutherland, as to Branden’s reputation in that vicinity, as. a competent pressman, should have been excluded. Baldwin v. Railroad, 4 Gray (Mass.) 333; Mrvingham v. Menon, 2 Brev. (S. 0.) 461 ; 1 Greenl. on Evid. [14 Ed.] sects. 98, 99, 124.
1Y. The evidence offered by defendant, tending to show that at the time plaintiff purchased the press, no guaranty was asked by plaintiff, none promised to Mm, and, therefore, none given, was not objectionable on the ground that it would vary the terms of a written contract. The appearance of the so-called .guaranty, on inspection, would require and permit explanation, and explanation is not contradiction; and if the appearance of the paper is consistent with either of two states of fact, evidence explaining the appearance, or showing the intention, is admissible. Kiontz v. Temple, 48 Mo, 71; !Brown v. Bank, 2 Mo. 191.
V. The contract required the plaintiff, within fifteen days after receipt of press, to thoroughly test the same, to give notice to defendants of any failure of the press to work satisfactorily. Plaintiff, upon failing to give such notice for five or six months, could not recover upon the contract, and all evidence about defendants’ agent, Cooper, failing to make such press register after five or six months, was wholly immaterial, and Cooper’s attempt to make it register was a gratuity, and did not affect the liability of either of the parties under the contract. ■
YI. If the suit had been upon' the executed guaranty, it would have been necessary for plaintiff to show, in order to recover, that he had performed the contract on his part. This he did not do. The conditions of the contract were dependent, and are to be construed according to the intention of the parties. Cress v. Blodgett, 64 Mo. 452; Nichols v. Larkin, 79 Mo. 264; Freeland v. Mitchell, 8 Mo. 487.
YII. The first instruction is objectionable (1) Because it eliminates the question of time, and ignores other conditions of the contract. (2) The instruction assumes as a fact, a matter at issue, viz: that a guaranty had been executed. (3) The one issue in the case is, as to whether the defendant agreed to execute the warranty or guaranty. The instructions, on the plaintiff’s part, assumed that such guaranty or warranty was executed. The court cannot, by instructions, change the issue. Bankston v. Ferris, 26 Mo. 175; Overton v. Webster, 26 Mo. 332; Brown v. Railroad, 80 Mo. 457.'
I. Tine first point, made by the appellants, is as follows: • “The so-called guaranty should not have been admitted in evidence. There was no allegation in the petition that it 'was ever executed. There was no evidence that it had been executed, and the paper itself, on inspection, showed that it had not been executed.” In answer, respondent says that the language of'the petition upon this subject is, “entered into a contract, for the purchase of one of said presses, which said contract, signed by the parties hereto, is in words and figures as follows, 'to-wit: ” and there follows a copy of the guaranty and contract in haee verba. This is a sufficient allegation, and the court found, on inspection of the paper, that it was all one contract, and that the signatures at the bottom, applied to the whole paper. This court will not, in the absence of the paper, review the decision of the trial court, and besides this, the reading of the copy in defendants’ brief, shows that the guaranty and contract were filled out with Cray-croffc’s name in the first and second line of the guaranty as printed. And, again, Craycroft agrees to make notes, etc., “if said press is as guaranteed.” And, again, “in ease I fail to make the press work satisfactorily as guaranteed, * * * put the press in good working order,” as guaranteed, all these expressions referring to the guaranty, show that it was adopted as a part of the contract,'and hence the ruling of the court, “that the signing at the bottom referred to the whole paper, guaranty and all,” was correct.
II. In this case the only testimony which could in any way be called expert, is as to how the press works, and Sutherland is shown to have been a printer and pressman of several years’ experience, and to have been.' familiar with this press, and, at times, had been foreman in Craycroft’s office. According to this case, he could certainly express Ms opinion as to whether the press did good work or not. This was a matter of common observation, to be judged of by any person who was familiar with the printer’s art. That part of Sutherland’s evidence which pertains to the mechanical construction of the press, which might have required him to have had some experience as a machinist, was stricken out on motion of defendants. The other Missouri cases are just to the effect that persons who are not experts, shall not give expert testimony.
III. The case of Kuntz v. Temple is to the effect that evidence may be given, to show the contract which a party intended to assume, by writing his name on the back of the note, when such intent is not expressed. In Broion «. Bank of Missouri, the court held that a letter, Avhich was claimed to be apart of the contract, might be shown by evidence aliunde to pertain to another subject, and had no reference to the contract under consideration. Neither of these cases has any application in the case at bar. Here it is sought, by oral evidence, to be shown that a certain material part of & written contract ought to be stricken out, and that, too, when the part sought to be stricken out is referred to, and by definite words made a part of the contract. It is of no importance whether the guaranty is signed or not. If it had been written on the back of the paper, or on another piece of paper, and not signed, yet, if it could be shown that it was the guaranty referred to in the contract, it would be apart of the contract, as much so as though, written in it, and the only question that could be raised is, whether that is the guaranty referred to. When the contents of a contract have been ascertained, the intention of the parties must be gathered from the contract itself, unless there is a latent ambiguity, which is not claimed in this case. Counsel say that they want to explain, not contradict; but the contract which they did sign, plainly says that the guaranty which, they say they did not sign, is to be read as a part of the contract. The object of the evidence here offered, is to flatly contradict the contract, and show that the guaranty — which, they admit, is the one referred to — should not be read with the contract. This is so clearly not permissible, ■ that authorities need not be referred to.
IY. The language of the contract, upon this point of notice is as follows : “ I do further agree, that in- case 1 am unable to make said press work satisfactorily within fifteen days of its receipt by me, I will notify Walker & Company, and ask them to set up said press free of expense to me. We do also agree to have in •readiness proper forms for testing said press as soon as it is set up by the authorized agent of Walker & Company, and will pay said expenses to the agent setting-up the press, if so directed by Walker & Company.” This is not, in any sense, a condition precedent. The liability of defendant for damages for a breach of his guaranty, is not, by the contract, made to depend on the plaintiff’s giving this notice. There is no agreement that notice may not 'be given later. There is only an ■agreement that if they fail to make the press run satisfactorily within fifteen days, he will give the notice. If the proof had shown that the defects, here shown in evidence, were known to respondent within fifteen days, and that appellants had been damaged by notice not having been given, etc., then appellants might have recouped such damages, but it could have no other effect. These facts, when talcen together, show that all that the plaintiff was required to do, even if the giving of notice is a condition precedent to a recovery, was proven to have been done by plaintiff, except it was not done within fifteen days. Time ■was not made of the essence of this contract, by express agreement, and the intention of the parties, gathered from the language used, shows it toas not intended. The fifteen days’ time fixed, is the time limited before the plaintiff had a right to call on defendants to fix the machine, without expense to plaintiff, and the giving of notice at all is on the theory that the press is in fact as guaranteed, and only requires to he properly set up and managed, to make it fill the requirements of the guaranty.
V. But this case goes on entirely another proposition, to-wit: That the press is radically wrong in principle, and so poorly constructed that it cannot be made to fill the guaranty, and that all presses of the same kind are inferior in construction and kind, so that, with any amount of repairs and setting up, or furnishing new presses, the guaranty cannot he satisfied. The ■agreement to give notice does not proceed on this theory, but on the theory that the .press, when properly set up and managed, is what the guaranty calls for. In such a •case the plaintiff has agreed to give notice, and let the •defendant come and adjust the press. But even then this agreement is not a condition precedent. Bishop, in his new work on Contracts, says that “a condition precedent is where a stipulation is to bind a party only on the transpiring of a designated event.” Bishop on Cont., sect. 586. Will it be said that if this press had been so built as to do good work, in every respect, for fifteen days, and then, on the sixteenth day, like the one-horse shay, drop into pieces, from mere instability of construction, that no recovery could be had? The .reading of the contract shows that this was not intended as a condition precedent. But, even if it is to be considered as a condition precedent, still the evidence shows that the plaintiff gave the notice within a reasonable time, and that the giving of the notice on the part •of the plaintiff, as alleged, was not controverted by the defendants, and hence was not. an issue to be tried by the jury. The court, in its instruction, had a right to ■assume that the notice had been given, so long as it had been clearly proved by the plaintiff, and not controverted by the defendants.
YI. In further objecting to instruction number one, the appellant claims that whether guaranty was executed or not, was the matter in issue, and hence should not have been ignored by the instruction. In this he is in error, as the court, at the trial, had excluded all evidence of this character.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
