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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. From a judgment for plaintiffs, defendant appeals. Affirmed.

Reed & Harvey, of Kansas City, for appellant. Ed. E. Aleshire, of Kansas City, for respondents.

TRIMBLE, J. This suit is over the sale of some secondhand automobiles by defendant to plaintiffs. By the terms of the purchase defendant agreed to repaint the cars and put them in good running condition f. o. b. cars at Kansas City, Mo. The evidence of the negotiations between the parties resulting in the sale shows that the automobiles were bought to be shipped to North Dakota and there retailed. The petition so alleges, and the evidence discloses that defendant was fully aware of this fact, and assured plaintiffs it would put the machines in good running condition on board the cars for shipment to that state for such purpose. The suit is for damages for failure to put the cars in good running order on board the cars at Kansas City; plaintiffs claiming they were not in such order when shipped, and defendant insisting that they were. This disputed question was submitted to a jury, and a verdict was returned in favor of plaintiffs, assessing their damages at $873.

were unfit to be used for the purpose for which they were purchased and that they were unable to sell or dispose of two of said cars on account of their condition when shipped, and that they were by reason thereof of no value to plaintiffs, then you will find for plaintiffs, and assess their damages at the full purchase price of said two cars, or if they were of any value to plaintiffs then the difference between the purchase. price of said cars and the actual market value of said two cars in the condition they were in and," etc. The italics in the above instruction show the portion thereof complained of as error. It is insisted that there was no express warranty that the machines were fit for any particular use or that they could be resold, and that the law does not imply a warranty that an article is fit for a particular intended use, or that it can be resold, and that the italicized portion of said instruction submits said issues to the jury. It may be observed that, under proper circumstances, an implied warranty of fitness does arise if goods are purchased for a particular purpose of which the buyer informs the seller, and the rule applies especially if the seller is a dealer in the article. It is not necessary, however, for us to decide whether this rule applies to the particular facts here presented, since the instruction does not as we view it submit such issues to the jury.

The instruction submits to the jury the question of the condition of the automobiles when loaded by defendant on the cars at Kansas City, and requires the jury to find that they were not in good running order when so loaded before a verdict in plaintiffs' favor can be returned. The italicized clause in reference to their unfitness to be used for the purpose for which they were bought and the inability to sell them is expressly required to be found to exist "on account of their condition when shipped." It does not lead or authorize the jury to believe that, even if the automobiles were in good condi

[1] There are two assignments of error -one as to an instruction given for plaintiffs, and the other as to the admission of evidence offered by plaintiffs to show the bad condition the automobiles were in when they reached their destination in North Dakota. This evidence tended to show, and was offered for the purpose of showing, the running condition of the automobiles when put on board the cars at Kansas City. The condition of the machines when received in Dakota was of such a nature that they must have been in that condition when shipped by defendant at Kansas City, and was not such a condition as would or might be caused by injury received in transit or adjustment | tion when put on board the cars, yet, if they unsuited to the change in climate. This being so, such evidence was clearly admissible to show that the automobiles were not in good running condition when placed on board the cars at Kansas City. Atkins Bros. v. Grain Co., 119 Mo. App. 119, loc. cit. 123, 95 S. W. 949; Neil v. Cunningham, 149 Mo. App. 53, 130 S. W. 503.

[2] The instruction complained of told the jury, in effect, that if they believed plaintiffs purchased the automobiles from defendant and paid the price therefor, and that defendant agreed to repaint said automobiles and put them in good running condition f. o. b. cars at Kansas City, Mo., and that plaintiffs relied on defendant to put said automobiles in good running condition, and “if you find and believe from the evidence that when

were unfit for use in Dakota or could not be sold by plaintiffs, still plaintiffs could recover. In fact, the unfitness of the automobiles for use and their unsalability is expressly required to grow out of the bad condition of the machines when loaded for shipment, at which time defendant agreed they would be in good condition. This clause as to unfitness and unsalability was not inserted as a ground of recovery. It bears solely on the question as to the value of the machines if they were not in good running condition when loaded for shipment; that is, as to whether they were of any value. The only question submitted as a ground of recovery was whether or not the automobiles were in good running condition when loaded. 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

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The record proper must show that motions for new trial and in arrest of judgment were filed or the rulings thereon are not reviewable, and it is not sufficient that the bill of exceptions states that they were filed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2575-2581, 2599, 2601; Dec. Dig. § 581.*]

2. APPEAL AND ERROR (§ 511*)-RECORD PROP

ER-FILING OF BILL OF EXCEPTIONS.

The record proper must show that the bill of exceptions was duly filed or it cannot be considered, and it is not sufficient that the bill states that it was filed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2319-2321; Dec. Dig. 511.*]

3. PLEADING (§ 426*)-DENIAL OF MOTION TO MAKE MORE DEFINITE AND CERTAIN-OBJECTIONS-WAIVER.

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, Cent. Dig. §§ 1425-1427; Dec. Dig. § 426.*]

Appeal from Circuit Court, Cole County; John M. Williams, Judge.

Action by Lena Donnovant and another against Mary Rinn. From a judgment for plaintiffs, defendant appeals. Affirmed.

Irwin & Peters, of Jefferson City, for appellant. Pope & Lohman, of Jefferson City, for respondents.

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.

[2] Again, the record proper does not state that the bill of exceptions was duly filed. It nowhere mentions a bill of exceptions. The bill of exceptions states the bill was filed; but, as we said of the motion for new trial, that is a matter which should appear in the record proper. Authorities last cited.

[3] We are thus left to the record proper. From that we learn there was a petition, answer, and reply. The petition is ample after verdict. It is true that defendant, by motion, asked that plaintiffs be required to make it more definite and certain, the motion being overruled; and complaint is made of this ruling, in the brief. But even if defendant had a right to complain in the state of the record as above set out, she waived all such right by answering. Ewing v. Vernon Co., 216 Mo. 681, 685, 116 S. W. 518; Storage Co. v. Kuhlmann, 238 Mo. 685, 702, 142 S. W. 253; Sandusky v. Courtney, 153 S. W. 1084 (decided this term).

The judgment is affirmed. All concur.

RUSK v. THOMPSON. (Kansas City Court of Appeals. Missouri. April 21, 1913.)

1. CONSTITUTIONAL LAW (§ 251*)-DUE PRO

CESS.

Notice is the essence of due process of law. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 726, 727, 732; Dec. Dig. § 251.*1

2. EXECUTORS AND ADMINISTRATORS (§ 379*)SALE OF LAND-SETTING ASIDE SALE-NOTICE.

A sale by an administrator having been

ELLISON, J. Plaintiffs' action is to re-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 drowned in the Missouri river. The judgment in the trial court was for the plaintiffs, and defendant appealed.

sale; and, if the sale is set aside and the land resold without notice, no action for difference him, it appearing that had he had notice he in price upon resale can be maintained against would have consummated his purchase.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 1545-1564, 1567; Dec. Dig. § 379.*]

[1] The bill of exceptions does not show that an exception was taken to the action of the court in overruling the motions for 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

Re

Wilson & Wilson, of Platte City, and J. W. Peery, of Albany, for appellant. Frisby & Frisby and Barlow & Barlow, all of Bethany, for respondent.

*

Action by J. H. Rusk, administrator, | 395, 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. 460, 469, 29 S. W. 584, 586. "It is a cardinal versed. principle that, whenever a party's rights are to be affected by summary proceeding or motion in court, that party should be notified, in order that he may appear for his own protection." State v. Biesemeyer, 136 Mo. App. 668, 118 S. W. 1197; Konta v. Stock Exchange, 150 Mo. App. 617, 620, 131 S. W. 380. This rule was applied to the action of a trial court in setting aside its order granting an appeal and thereafter acting on other motions in the absence of the appellant. State v. Sutton, 232 Mo. 244, 134 S. W. 663. The wisdom of the foregoing law is made apparent by the evidence in this case. Evidence in defendant's behalf tend

ELLISON, P. J. Plaintiff is the public administrator of Harrison county, and as such, under an order of the probate court of that county, he sold at public sale a certain tract of land to the defendant for the sum of $1,300. The sale was reported to the probate court, and was approved. Afterwards, at the same term, plaintiff filed a motion in that court to set the sale aside

for nonpayment of the purchase price, and the court, by its order of record, did so. Plaintiff thereupon resold the land at public sale, and it was bid in by a purchaser at $1,116. No notice of the filing of the application was given to defendant, and he had no opportunity to be heard. This action was then brought against defendant for the difference between his bid at the first sale and the price brought at the second sale. The judgment in the trial court was for the plaintiff.

[1, 2] These facts we think show plaintiff to be without a right of action. In order to hold a purchaser for the difference between 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 properly set aside and a resale ordered; and this would require that he be duly notified of the application and an opportunity thereby given him to be heard. It is true that by purchasing the property he became a party to the proceedings, and would be chargeable with notice of the orders of the probate court in approving or disapproving the sale. But, when in this case the sale was approved, defendant, as purchaser, became entitled to notice of the application to set it aside and order a new sale. A purchaser at sheriff's sale must have notice of motion to set it aside. Thomas v. Elliott, 215 Mo. 598, 602, 114 S. W. 987. Defendant should have been notified of the time and place of the application, that he might have been heard in denial or explanation of the reasons given for setting the sale aside. Greenwalt v. McClure, 7 Ill. App. 152; Morrison v. Burnette, 154 Fed. 617, 622, 83 C. C. A. 391; 17 Amer. & Eng. Enc. of Law (2d Ed.) 1026, 1027, 1028.

Notice, it is said, "is of the essence of due process of law.” Gardner v. Robertson, 208 Mo. loc. cit. 610, 106 S. W. 646. "And though the statute does not, in terms, require notice, the law will imply that notice was intended." State ex rel. v. Walbridge, 119 Mo. 383,

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Special tax bills for a street improvement were not invalid because the ordinance authorizing the work provided for a patented pavement to the use of which the successful bidder had the exclusive right, thereby preventing competition as required by the charter, since the necessity for open specifications and competition in public work in order to validate tax bills does not apply to patented articles. Corporations, Cent. Dig. §§ 854, 855; Dec. Dig. [Ed. Note. For other cases, see Municipal § 330.*]

Appeal from Circuit Court, Buchanan County; W. K. Amick, Judge.

Action by the Rackliffe-Gibson Construction Company against George Belle Walker and others. Judgment for plaintiff, and defendants appeal. Affirmed.

W. H. Haynes, of St. Joseph, for appellants. Frank B. Fulkerson and Joshua A. Graham, both of St. Joseph, and Hugh C. Smith, of Kansas City, for respondent.

ELLISON, P. J. Plaintiff's action is on a special tax bill issued for work on a street

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 (§ 445*)—PUBwas for the plaintiff. LIC IMPROVEMENTS-TAX BILLS-EFFECT OF SECRET REBATE.

Defendants insist that the bill is void from the fact that the ordinance authorizing the work provided for concrete pavement known and designated as "Hassam pavement," to the use of which plaintiff had the exclusive right; and that therefore no competition or competitive bidding could be had as required by the charter of St. Joseph. In support of this contention it cites Curtice v. Schmidt, 202 Mo. 703, 722-727, 101 S. W. 61, 10 Ann. Cas. 702; Shoenberg v. Field, 95 Mo. App. 241, 68 S. W. 945.

since.

But the "Hassam pavement" is a patented article, and the authorities just cited are not applicable, since, while they assert the necessity for open specifications and competition in public work in order to validate tax bills, they except patented articles. In Barber Asphalt Pav. Co. v. Hunt, 100 Mo. 22, 13 S. W. 98, 8 L. R. A. 110, 18 Am. St. Rep. 530, the Supreme Court upheld the right of cities to provide for the use of patented articles, and that case has been cited with approval Swift v. City of St. Louis, 180 Mo. 80, 76 S. W. 172. Curtice v. Schmidt, supra, does not overrule Barber Asphalt Pav. Co. v. Hunt, supra. Such is the understanding, as shown in Custer v. City of Springfield, 167 Mo. App. 354, 151 S. W. 759; Paving Co. v. McLord, 145 Mo. App. 141, 130 S. W. 371. The Supreme Court, judging from expressions in different opinions, have upheld the Hunt Case with some regret, feeling constrained on the ground that stare decisis and investments on the faith of that case have made it necessary.

It follows that the bills are not void, and the judgment of the circuit court must be

affirmed. All concur.

RACKLIFFE GIBSON CONST. CO. v.
ZIELDA FORSEE INV. CO.
(Kansas City Court of Appeals. Missouri.
April 21, 1913.)

1. APPEAL AND ERROR (§ 934*)-REVIEW-
QUESTIONS OF FACT.

In an action to enforce a special tax bill for a public improvement defended on the ground that the contractor had given one of the property owners a rebate on condition that he would not oppose the contract nor contest the validity of the tax bills, where no declarations of law were asked or given and judgment was rendered for plaintiff, the evidence would be viewed in the aspect most favorable to plaintiff, and where there was evidence tending to show that the offer to such property owner was of a small discount for the prompt payment of the tax bill and was not secret or special, but was general and open to all interested property owners who might wish to avail themselves of it, it would be presumed that the court found

to this effect.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.*]

abutting property owners by a successful bid-
The offer of a secret or special rebate to
der, for the purpose of preventing their oppo-
sition to a proposed public improvement at a
effective to prevent him obtaining the contract,
time when their opposition thereto might prove
is a fraud which will invalidate the tax bills.
[Ed. Note.-For other cases,
Corporations, Cent. Dig. § 1065; Dec. Dig. §
see Municipal
445.*]

3. MUNICIPAL CORPORATIONS (§ 445*)—PUB-
LIC IMPROVEMENTS-TAX BILLS-EFFECT OF
SECRET REBATE.

provement of a discount to those paying their An offer by a contractor for a public imtax bills promptly and not contesting their vadid not invalidate the tax bills whether made lidity, which was open to all property owners, before or after the letting of the contract.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1065; Dec. Dig. § 445.*]

Appeal from Circuit Court, Buchanan County; W. K. Amick, Judge.

Action by the Rackliffe-Gibson Construction

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Company against the Zielda Forsee Investment Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Joseph E. Corby, of St. Joseph, for appellant. Fulkerson & Graham, of St. Joseph, for respondent.

JOHNSON, J. This is an action to enforce the lien of a special tax bill issued by St. Joseph, a city of the second class. The only issue discussed in the briefs is whether or not the evidence shows as a matter of law

that plaintiff, the contractor, offered and allowed a rebate to one of the interested property owners before the letting of the 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 was decided adversely to defendant. Judgment was rendered for plaintiff in accordance with the prayer of the petition, and defendant appealed.

The

The improvement in question consisted of Highway Bridge to Marion street with "Hasthe paving of Twenty-Second street from sam" pavement, a patented material. abutting property subject to assessment had fendant owned 667 feet, and the cost of the a total frontage of 2,946 feet, of which dework assessed against the property of defendant was $3,397.30.

The statutes relating to street improvements in cities of the second class (section 8 et seq., p. 62, Laws 1903) invested the board of public works of St. Joseph with extensive powers in such matters. When acting unanimously the board had authority to initiate an improvement such as the paving of a public street on its own motion and 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 when the board had authority to reject the bid of plaintiff and to refuse to enter into a contract with him.

Mr. Motter and told him on the street that: "We had made a proposition, or were ready to make a proposition, that we would offer anybody or any one who paid their tax bills in cash would receive a discount of 10 per cent. That included every property owner on the street."

Such was the method pursued in the present instance. The ordinance was passed July 16, 1907, and at the time and place stated 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 defendant objected to the improvement from the beginning, and at the time the contract was awarded both plaintiff and the members of the board knew of defendant's hostile attitude and of its purpose to contest the tax bills. Another extensive property owner also 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 paving 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 been awarded to plaintiff or would be so awarded at that meeting. He was followed from the room by the agent of plaintiff, who engaged him in conversation, in the course of which, according to his testimony, the agent stated: "Well, now we want to do the right thing, and if you people will not contest the tax bills, why we will allow you a discount on them, as I remember it was 10 per cent." On cross-examination Mr. Motter further testified: "Q. I will ask you if

[2] The rule is well settled that the offer of a secret or special rebate to one or more of the abutting property owners, made by the successful bidder for the purpose of preventing or allaying the opposition of such owners to the proposed improvement and at a time when their opposition might prove sufficiently effective to defeat the bidder and prevent him from obtaining the contract, is a fraud the law will not tolerate nor allow to come to a successful issue. Kurtz v. Knapp, 127 Mo. App. loc. cit. 612, 106 S. W.

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