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Action by H. B. Kelly and another, part- | cars for shipment in Kansas City, Mo., were ners, doing business as Kelly & Kelly, against not in good running order, and that they the Times Square Automobile Company. were unfit to be used for the purpose for From a judgment for plaintiffs, defendant which they were purchased and that they appeals. Affirmed.

were unable to sell or dispose of two of said Reed & Harvey, of Kansas City, for appel- shipped, and that they were by reason there

on account of their condition when lant. Ed. E. Aleshire, of Kansas City, for of of no value to plaintiffs, then you will respondents.

find for plaintiffs, and assess their damages

at the full purchase price of said two cars, TRIMBLE, J. This suit is over the sale or if they were of any value to plaintiffs of some secondhand automobiles by defend then the difference between the purchase. ant to plaintiffs. By the terms of the pur- price of said cars and the actual market chase defendant agreed to repaint the cars value of said two cars in the condition they and put them in good running condition f. were in and," etc. The italics in the above 0. b. cars at Kansas City, Mo. The evidence instruction show the portion thereof comof the negotiations between the parties re plained of as error. It is insisted that there sulting in the sale shows that the automo- was no express warranty that the machines biles were bought to be shipped to North Da- were fit for any particular use or that they kota and there retailed. The petition so als could be resold, and that the law does not leges, and the evidence discloses that defend-imply a warranty that an article is fit for a ant was fully aware of this fact, and assured particular intended use, or that it can be replaintiffs it would put the machines in good sold, and that the italicized portion of said running condition on board the cars for instruction submits said issues to the jury. shipment to that state for such purpose. It may be observed that, under proper cirThe suit is for damages for failure to put cumstances, an implied warranty of fitness the cars in good running order on board the does arise if goods are purchased for a parcars at Kansas City; plaintiffs claiming they ticular purpose of which the buyer informs were not in such order when shipped, and de- the seller, and the rule applies especially if fendant insisting that they were. This dis- the seller is a dealer in the article. It is not puted question was submitted to a jury, and necessary, however, for us to decide whether a verdict was returned in favor of plain this rule applies to the particular facts here tiffs, assessing their damages at $873. presented, since the instruction does not as

(1) There are two assignments of error we view it submit such issues to the jury. one as to an instruction given for plain- The instruction submits to the jury the tiffs, and the other as to the admission of question of the condition of the automobiles evidence offered by plaintiffs to show the when loaded by defendant on the cars at bad condition the automobiles were in when Kansas City, and requires the jury to find they reached their destination in North Da- that they were not in good running order kota. This evidence tended to show, and when so loaded before a verdict in plaintiffs' was offered for the purpose of showing, the favor can be returned. The italicized clause running condition of the automobiles when in reference to their unfitness to be used put on board the cars at Kansas City. The for the purpose for which they were bought condition of the machines when received in and the inability to sell them is expressly Dakota was of such a nature that they must required to be found to exist "on account of have been in that condition when shipped their condition when shipped." It does not by defendant at Kansas City, and was not lead or authorize the jury to believe that, such a condition as would or might be caused even if the automobiles were in good condiby injury received in transit or adjustment tion when put on board the cars, yet, if they unsuited to the change in climate. This be- were unfit for use in Dakota or could not be ing so, such evidence was clearly admissible sold by plaintiffs, still plaintiff's could reto show that the automobiles were not in cover. In fact, the unfitness of the automogood running condition when placed on biles for use and their unsalability is exboard the cars at Kansas City. Atkins Bros. pressly required to grow out of the bad conV. Grain Co., 119 Mo. App. 119, loc. cit. 123, dition of the machines when loaded for ship95 S. W. 949; Neil v. Cunningham, 149 Mo. ment, at which time defendant agreed they App. 53, 130 S. W. 503.

would be in good condition. This clause as [2] The instruction complained of told the to unfitness and unsalability was not insertjury, in effect, that if they believed plaintiffs ed as a ground of recovery. It bears solely purchased the automobiles from defendant on the question as to the value of the maand paid the price therefor, and that defend- chines if they were not in good running conant agreed to repaint said automobiles and dition when loaded for shipment; that is, put them in good running condition f. o. b. as to whether they were of any value. The cars at Kansas City, Mo., and that plaintiffs only question submitted as a ground of rerelied on defendant to put said automobiles covery was whether or not the automobiles in good running condition, and "if you find were in good running condition when loaded. and believe from the evidence that when The defendant's instruction told the jury defendant loaded the automobiles in good | after plaintiffs had made objection and askrunning condition, then the verdict must be ed an affirmance of the judgment, defendant for defendant, regardless of the condition of asks that she be permitted to amend the abthe automobiles when received at their des- stract by adding thereto that exceptions were, tination. The jury were also instructed that in fact, taken. Plaintiffs object to this leave the burden of proof was on plaintiffs. Thus and point out what they term defendant's but one question of fact was submitted to neglect in the matter; and, further, they inthe jury, namely, the running condition of sist that without that objection the judg. the automobiles when delivered on board ment must be affirmed on other grounds. the cars at Kansas City. The jury found We find that the record proper does not show for plaintiffs, and were the sole judges of that these motions were ever filed. The bill that issue. We do not think the jury could of exceptions states they were, but that will have been misled or deceived by the instruc- not suffice. Hays v. Foos, 223 Mo. 421, 122 tion.

S. W. 1038; Kolokas v. Railway Co., 223 Mo. Accordingly the judgment is affirmed. All 455, 122 S. W. 1082; Wallace v. Libby, 231 concur.

Mo. 341, 132 S. W. 665; Keaton v. Weber, 233 Mo. 691, 136 S. W. 342; City of St.

Louis v. Henning, 235 Mo. 44, 138 S. W. 5. DONNOVANT et al. v. RINN.

[2] Again, the record proper does not state

that the bill of exceptions was duly filed. It (Kansas City Court of Appeals. Missouri.

nowhere mentions a bill of exceptions. The April 21, 1913.)

bill of exceptions states the bill was filed; 1. APPEAL AND ERROR ( 581*) RECOBD

PROPER—MOTIONS FOR NEW TRIAL AND IN but, as we said of the motion for new trial, ARBEST.

that is a matter which should appear in the The record proper must show that motions record proper. Authorities last cited. for new trial and in arrest of judgment were [3] We are thus left to the record proper. filed or the rulings thereon are not reviewable, and it is not sufficient that the bill of exceptions From that we learn there was a petition, anstates that they were filed.

swer, and reply. The petition is ample after [Ed. Note.-For other cases, see Appeal and verdict. It is true that defendant, by mo Error, Cent. Dig. 88 2575-2581, 2599, 2601; tion, asked that plaintiffs be required to Dec. Dig. 8 581.*]

make it more definite and certain, the motion 2. APPEAL AND ERROR (8 511*)_RECORD PBOP-being overruled; and complaint is made of ER-FILING OF BILL OF EXCEPTIONS.

The record proper must show that the bill this ruling, in the brief. But even if defend. of exceptions was duly filed or it cannot be con- ant had a right to complain in the state of sidered, and it is not sufficient that the bill the record as above set out, she waived all states that it was filed.

such right by answering. Ewing v. Vernon [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. $82319-2321; Dec. Dig. & Co., 216 Mo. 681, 685, 116 s. W. 518; Stor511.*)

age Co. v. Kuhlmann, 238 Mo. 685, 702, 142 3. PLEADING (8 426*)-DENIAL OF MOTION TO S. W. 253; Sandusky v. Courtney, 153 S. W.

MAKE MORE DEFINITE AND CERTAIN-OB- 1084 (decided this term).
JECTIONS-WAIVER.

The judgment is affirmed. All concur. Defendant, who answers after denial of a motion to make the petition more definite and certain, thereby waives the right to complain of the ruling. (Ed. Note. For other cases, see Pleading,

RUSK v. THOMPSON. Cent. Dig. &$ 1425–1427; Dec. Dig. § 426.*]

(Kansas City Court of Appeals. Missouri. Appeal from Circuit Court, Cole County ;

April 21, 1913.) John M. Williams, Judge.

1. CONSTITUTIONAL LAW (8251*)—DUE PROAction by Lena Donnovant and another against Mary Rinn. From a judgment for Notice is the essence of due process of law. plaintiffs, defendant appeals. Affirmed. (Ed. Note.-For other cases, see ConstitutionIrwin & Peters, of Jefferson City, for ap- 8 251.*í

al Law, Cent. Dig. $8 726, 727, 732; Dec. Dig. pellant. Pope & Lohman, of Jefferson City, 2. EXECUTORS AND ADMINISTRATORS (8 379*) – for respondents.

SALE OF LAND-SETTING ASIDE SALE-No

TICE. ELLISON, J. Plaintiffs' action is to re

A sale by an administrator having been

approved, the purchaser is entitled to notice of cover the amount of a reward offered for an application to set it aside and order a new finding the body of defendant's son, who was sale; and, if the sale is set aside and the land drowned in the Missouri river. The judg- resold without notice, no action for difference ment in the trial court was for the plaintiffs, him, it appearing that had he had notice he

in price upon resale can be maintained against and defendant appealed.

would have consummated his purchase. [1] The bill of exceptions does not show [Ed. Note.-For other cases, see Executors that an exception was taken to the action and Administrators, Cent. Dig. 88 1545-1564, of the court in overruling the motions for

1567; Dec. Dig. 8 379.*] new trial and in arrest of Judgment. More Appeal from Circuit Court, Harrison Counthan a year after the appeal was taken, and ty; Geo. W. Wanamaker, Judge. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

CESS.

case,

Action by J. H. Rusk, administrator, 1395, 24 S. W. 457, 460 (41 Am. St. Rep. against John D. Thompson. From a judg- 663); Roberts v. St. Louis Imp. Co., 126 Mo. ment for plaintiff, defendant appeals. Re- 460, 469, 29 S. W. 584, 586. "It is a cardinal versed.

principle that, whenever a party's rights are Wilson & Wilson, of Platte City, and J. W. to be affected by summary proceeding * Peery, of Albany, for appellant. Frisby & or motion in court, that party should be noFrisby and Barlow & Barlow, all of Beth. tified, in order that he may appear for his any, for respondent.

own protection.” State v. Biesemeyer, 136

Mo. App. 668, 118 S. W. 1197; Konta v. ELLISON, P. J. Plaintiff is the public Stock Exchange, 150 Mo. App. 617, 620, 131 administrator of Harrison county, and as

S. W. 380. This rule was applied to the such, under an order of the probate court of action of a trial court in setting aside its that county, he sold at public sale a certain order granting an appeal and thereafter acttract of land to the defendant for the sum ing on other motions in the absence of the of $1,300. The sale was reported to the appellant. State v. Sutton, 232 Mo. 244, 134 probate court, and was approved. After

S. W. 663. The wisdom of the foregoing law wards, at the same term, plaintiff filed a is made apparent by the evidence in this motion in that court to set the sale aside

Evidence in defendant's ebalf tendfor nonpayment of the purchase price, and ed to prove that he was ready and willing to the court, by its order of record, did so. pay his bid. There was a misunderstanding Plaintiff thereupon resold the land at public as to how the money was to be paid. He sale, and it was bid in by a purchaser at did not live at the county seat and had made $1,116. No notice of the filing of the ap- arrangements for payment through others. plication was given to defendant, and he certainly the record discloses enough to had no opportunity to be heard. This ac- make it reasonable to suppose that, if he tion was then brought against defendant for had been notified that an application had the difference between his bid at the first been filed to set aside the sale to him, he sale and the price brought at the second would have appeared with the money and sale. The judgment in the trial court was

demanded his deed. for the plaintiff.

We think that, in the absence of proper [1, 2] These facts we think show plaintifr notice, no right existed to dispose of the to be without a right of action. In order to motion by setting aside the sale; and the hold a purchaser for the difference between judgment must therefore be reversed. All the price bid by him at a public judicial sale, and a less price subsequently obtained on a resale occasioned by his not having paid his bid, the sale to him should be prop- RACKLIFFE-GIBSON CONST. CO. v. erly set aside and a resale ordered; and

WALKER et al. this would require that he be duly notified (Kansas City Court of Appeals. Missouri. of the application and an opportunity there

April 21, 1913.) by given him to be heard. It is true that MUNICIPAL CORPORATIONS (8 330*)—PUBLIC by purchasing the property he became a par- IMPROVEMENTS–CONTRACTS-NECESSITY ty to the proceedings, and would be charge

COMPETITION. able with notice of the orders of the probate were not invalid because the ordinance author

Special tax bills for a street improvement court in approving or disapproving the sale. izing the work provided for a patented paveBut, when in this case the sale was approvement to the use of which the successful bidder ed, defendant, as purchaser, became entitled petition as required by the charter, since the

bad the exclusive right, thereby preventing comto notice of the application to set it aside necessity for open specifications and competiand order a new sale. A purchaser at sher- tion in public work in order to validate tax iff's sale must have notice of motion to set bills does not apply to patented articles. it aside. Thomas v. Elliott, 215 Mo. 598, Corporations, Cent. Dig. 88 854, 855; Dec. Dig.

[Ed. Note.-For other cases, see Municipal 602, 114 S. W. 987. Defendant should have 330.*] been notified of the time and place of the application, that he might have been heard

Appeal from Circuit Court, Buchanan in denial or explanation of the reasons giv- County; W. K. Amick, Judge. en for setting the sale aside. Greenwalt v.

Action by the Rackliffe-Gibson Construction McClure, 7 m. App. 152; Morrison v. Bur: Company against George Belle Walker and nette, 154 Fed. 617, 622, 83 C. C. A. 391 ; others. Judgment for plaintiff, and defend17 Amer. & Eng. Enc. of Law (20 Ed.) 1026, ants appeal. Affirmed. 1027, 1028.

W. H. Haynes, of St. Joseph, for appelNotice, it is said, “is of the essence of due lants. Frank B. Fulkerson and Joshua A. process of law." Gardner v. Robertson, 208 Graham, both of St. Joseph, and Hugh O. Mo. loc. cit. 610, 106 S. W. 646. “And though Smith, of Kansas City, for respondent. the statute does not, in terms, require notice, the law will imply that notice was intend- ELLISON, P. J. Plaintiff's action is on a ed.” State ex rel. v. Walbridge, 119 Mo. 383, special tax bill issued for work on a street

concur.

OF

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

in the city of St. Joseph. The judgment | 2. MUNICIPAL CORPORATIONS (8 445*)-PUBwas for the plaintiff.

LIC IMPROVEMENTS_TAX BILLS-EFFECT OF

SECRET REBATE. Defendants insist that the bill is void from

The offer of a secret or special rebate to the fact that the ordinance authorizing the abutting property owners by a successful bidwork provided for concrete pavement known der, for the purpose of preventing their oppoand designated as “Hassam pavement,” to sition to a proposed public improvement at a

time when their opposition thereto might prove the use of which plaintiff had the exclusive effective to prevent him obtaining the contract, right; and that therefore no competition or is a fraud which will invalidate the tax bills. competitive bidding could be had as required [Ed. Note.-For other cases, see Municipal by the charter of St. Joseph. In support of Corporations, Cent. Dig. $ 1065; Dec. Dig. S

445.*] this contention it cites Curtice v. Schmidt, 202 Mo. 703, 722–727, 101 S. W. 61, 10 Ann. 3. MUNICIPAL CORPORATIONS (8 445*)—PUBCas. 702; Shoenberg v. Field, 95 Mo. App.

LIO IMPROVEMENTS—Tax BILLS EFFECT OF

SECRET REBATE. 241, 68 S. W. 945.

An offer by a contractor for a public imBut the “Hassam pavement” is a patented provement of a discount to those paying their article, and the authorities just cited are not tax bills promptly and not contesting their vaapplicable, since, while they assert the neces- I did not invalidate the tax bills whether made

lidity, which was open to all property owners, sity for open specifications and competition before or after the letting of the contract. in public work in order to validate tax bills,

[Ed. Note.-For other cases, see Municipal they except patented articles. In Barber Corporations, Cent. Dig. § 1065; Dec. Dig. 8 Asphalt Pav. Co. v. Hunt, 100 Mo. 22, 13 445.*] S. W. 98, 8 L. R. A. 110, 18 Am. St. Rep. 530, the Supreme Court upheld the right of cities County; W. K. Amick, Judge.

Appeal from Circuit Court, Buchanan to provide for the use of patented articles,

Action by the Rackliffe-Gibson Construction and that case has been cited with approval Company against the Zielda Forsee Investsince. Swift v. City of St. Louis, 180 Mo. ment Company.' Judgment for plaintiff, and 80, 76 S. W. 172. Curtice v. Schmidt, supra, defendant appeals. Affirmed. does not overrule Barber Asphalt Pav. Co. V. Hunt, supra. Such is the understanding, Joseph E. Corby, of St. Joseph, for appelas shown in Custer v. City of Springfield, lant. Fulkerson & Graham, of St. Joseph, 167 Mo. App. 354, 151 S. W. 759; Paving Co. for respondent. v. McLord, 145 Mo. App. 141, 130 S. W. 371. The Supreme Court, judging from expres

JOHNSON, J. This is an action to ensions in different opinions, have upheld the

force the lien of a special tax bill issued by Hunt Case with some regret, feeling constrained on the ground that stare decisis and St. Joseph, a city of the second class. The investments on the faith of that case have only issue discussed in the briefs is whether

or not the evidence shows as a matter of law made it necessary.

It follows that the bills are not void, and that plaintiff, the contractor, ofiered and the judgment of the circuit court must be allowed a rebate to one of the interested

property owners before the letting of the affirmed. All concur.

contract on condition that he would not oppose the contract nor contest the validity of the tax bills. This issue was tried in the

circuit court without the aid of a jury and RACKLIFFE-GIBSON CONST. CO. v.

was decided adversely to defendant. JudgZIELDA FORSEE INV. CO.

ment was rendered for plaintiff in accord(Kansas City Court of Appeals. Missouri.

ance with the prayer of the petition, and April 21, 1913.)

defendant appealed. 1. APPEAL AND ERROR (8 934*)_REVIEW- The improvement in question consisted of QUESTIONS OF Fact.

the paving of Twenty-Second street from In an action to enforce a special tax bill Highway Bridge to Marion street with “Hasfor a public improvement defended on the ground that the contractor had given one of the sam” pavement, a patented material. The property owners a rebate on condition that he abutting property subject to assessment had would not oppose the contract nor contest the

a total frontage of 2,946 feet, of which devalidity of the tax bills, where no declarations fendant owned 667 feet, and the cost of the of law were asked or given and judgment was rendered for plaintiff, the evidence would be work assessed against the property of deviewed in the

to show that the offer to such property owner was of a small discount for the prompt payment of ments in cities of the second class (section the tax bill and was not secret or special, but 8 et seq., p. 62, Laws 1903) invested the was general and open to all interested property board of public works of St. Joseph with exowners who might wish to avail themselves of tensive powers in such matters. When actit, it would be presumed that the court found ing unanimously the board had authority to to this effect.

[Ed. Note.-For other cases, see Appeal and initiate an improvement such as the paving Error, Cent. Dig. 88 3777-3781, 3782; Dec. of a public street on its own motion and Dig. $ 934.*]

without a petition signed by property own*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ers. In such cases it was the duty of the sation which you have related did not tell board to prepare an ordinance for the im you that any offer he made to you would be provement and to submit it to the common to any other property owner on the street, council, together with all objections filed that anybody that would pay their bills with the board, with such recommendations promptly that he would give them the disas the board might desire to make to the count, or words to that effect? A. Well, as council and with full plans and estimates of I remember, I think he did say that. Those the cost of the improvement. But before that pay their bills or who do not contest submitting such ordinance to the council the them we will give them a discount on them. board was required to publish in the official | Q. And he made it general to every one? A. paper of the city a notice to "all persons That is my recollection about it. Q. You interested of the time and place when and never had any further "conversation with where the said board will hear objections to the board about it in any way? A. I don't such proposed ordinance." The board pass- recollect any further conversation about it." ed on objections filed pursuant to such no- The witness was not certain whether his tice, and if they were overruled then sub- protest and argument to the board occurred mitted the ordinance to the council. On immediately before or immediately after the the enactment of the ordinance the duty de- awarding of the contract to plaintiff, but the volved on the board of advertising for bids fact is undisputed that it was made at the and of letting the contract “to the lowest meeting at which the proposals were opened and best bidder."

and the contract awarded and at a time Such was the method pursued in the pres- when the board had authority to reject the ent instance. The ordinance was passed bid of plaintiff and to refuse to enter into a July 16, 1907, and at the time and place stat contract with him. ed in the advertisement for proposals the The agent, offered as a witness by plainboard opened the bids and awarded the con- tiff, testified that after the contract had been tract to plaintiff as the lowest and best bid- awarded he left the office of the board with der. It appears from the evidence that de- Mr. Motter and told him on the street that: fendant objected to the improvement from “We had made a proposition, or were ready the beginning, and at the time the contract to make a proposition, that we would offer was awarded both plaintiff and the members anybody or any one who paid their tax bills of the board knew of defendant's hostile at- in cash would receive a discount of 10 per titude and of its purpose to contest the tax cent. That included every property owner bills. Another extensive property owner also on the street.” objected to the letting of the contract for

[1] It is the contention of plaintiff that “Hassam” pavement, and its president, Mr. this conversation was the one to which Mr. Samuel I. Motter, appeared before the board Motter referred in his testimony, and that on the occasion of the opening of the bids it occurred after the contract had been let. and protested against the awarding of the None of the members of the board appeared contract on the ground of the excessive cost as a witness. Plaintiff introduced some othof paying the street with the patented ma

er testimony tending to show that the subterial. He testified that he made his objec-Ject of letting the contract was open and tions to the board in the presence of the undetermined at the time Motter and the agent of plaintiff. He expressed the view agent retired from the presence of the board, that the opposition of defendant to the im- and that the award was not made until after provement and the probability of a legal | the reappearance of the agent alone. No contest should the contract be awarded to declarations of law were asked or given, and plaintiff had caused plaintiff to increase its with the case. in such posture we are bound bid, and that a manifest injustice would be to view the evidence in its aspect most favordone the other property owners if they able to plaintiff. In other words, our conshould be compelled to bear the burden of sideration of the controverted issue must such contest, which would be the case if the proceed from the same position it would be proposal of plaintiff were accepted. This our duty to take were the case before us argument was unavailing, and Mr. Motter on a demurrer to the evidence offered by left the presence of the board with the un- defendant. derstanding that the contract either had [2] The rule is well settled that the offer of been awarded to plaintiff or would be so a secret or special rebate to one or more awarded at that meeting. He was followed of the abutting property owners, made by from the room by the agent of plaintiff, who the successful bidder for the purpose of preengaged him in conversation, in the course venting or allaying the opposition of such of which, according to his testimony, the owners to the proposed improvement and at agent stated: “Well, now we want to do the a time when their opposition might prove right thing, and if you people will not con- sufficiently effective to defeat the bidder and test the tax bills, why we will allow you a prevent him from obtaining the contract, is discount on them, as I remember it was 10 a fraud the law will not tolerate nor allow per cent.” On cross-examination Mr. Mot to come to a successful issue. Kurtz v. ter further testified: "Q. I will ask you if Knapp, 127 Mo. App. loc. cit. 612, 106 S. W.

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