994 FIRST NAT. BK. OF MINNEAPOLIS V. MALVERN. [171 „ ” FIRST NATIONAL BANK OE• MINNEiPO' LIS V. 'MALVERN. Opinion- delivered October. 18, 1926.. _ 1." SALES EREACH OF- WARRANTY:—In an" action 'bir notes given for • • , a tractor, in' which- there Was 'evidence ' tending •to establish the defense of a -breach. of warranty --; it•was -not- error to refuse to , instruct the jury to find:for plaintiff for the full amount of the notes,-instea • d . . of : a . l lo • wing credit for any damages caused by such breach of warranty. 2., EviDENcpAimIssIBILITY OP: , PAROL EVIDkNCE.—In an action on no6it'a • giyA 'for whfch plaintiff 6ontended that the 3. • " letter of aceeilfance'showed 'either that it .conforined to the war--- • • ranty' or that . the: warranty was :Waived, representation's of the .; -.3 seller's agent that • 'the . tractor would : do the: work S -after it limbered up..was . admissible .to show . the - circumstances under which the letter was written , and 4114 the warranty was not waived. • . SALES—REMEDIES OF BUYER.÷-The buyer of a tractor which did not conform to the warranty could ietainAt, and,- "when' sued for the balanCe of the purchase moneY,- recOup'ifie -damige's result-, • ing from the -breach of Warranty. • 4". APPEAL AND ERROR—CONCLUSIVENESS OF VERDICT.—A verdict will not be disturbed on appeal because it allovis excessive interest if •the evidence supports the verdict, and a finding on conflicting
ARK.] FIRST NAT. BK. OF MINNEAPOLIS V. MALVERN. 995 evidence as to the amount of damages is conclusive if the sum found does not exceed the 'highest award supported by testiniOny. 5. APPEAL AND ERROR-EXCESSIVE .JUDGMENT-REDUCTION OP AMOUNT. —In an action on notes given for 'a. trictor, where ,recoupment allowed for breach of warranty- was for an excessiye,lamount, damages will be reduced an'd judgment,rendered accorAingly.. Appeal froila Hot Spring Circuit Othirt; Thonzas'E. Toler, Judge; reversed: • Coteman c itiddick :and Frank E.' . 6hoitikin gs , for appellant. ' • 1 John,L. McClellan; for. appellee. • ' SMITH, J. -Atpellant broUght suit against-the City' ; • of MalVern upon:three notes-executed !by the' -city 'in favor.' of . Kinnard & Sons Manufacturing CompanY, hereinafter referred-to- as ,,the ,company.• The-notes . 'represented a part of-the . purchase priee of -a AraCtor purchased "by'the city fram •theCorripany: .. • At the trial a verdict arid judkt-ment were . reridered q 117 favor 'Of the citY, from-Which the' ." plaintiff 'bank has .. apPealed. • ..• : • " • • The . traCtor • WaS' pUrchased: by the 6ity u , n d • er 'what' was called a -``: dethonstration Order;" Urider' which-the tractor Was td be tested -and triedlO - aScertain' if it 'Mei the wa:rranty Under which it had leen . sad.' This War, ran-ty •was ; in writing,* and*WaS tO' the effect that tho cbin pany warranted' that the tractor was . made Of goedmater rial, and, when in good order and piopetly would do theWork for-Which it Was reaSOnablf intended; .' the work being "to operate . SiiecesSfUlly -a . - Russell Standard 'grader and• Scarifier On the'Streets . of the 'CitY:' of Malvern."•- The . ComPariY arsO akreed te ` rerilace; free of charge f. o. b. factory, any parts . which might be brokeii:, in regular arid-. practi'dal'USO by reaSOU;af ;defective 'mate,...1 rial or' workthariship, Withiri a 'period df- one year frdni .7i! date of purchase.' • ' ' _ • The searifier was Used to looSen and tear_ up the surface of the streets, preparatory *to regrading 'and repair-1 ing them, and the Russell . scarifier had- nine prongs teeth for this purpose.
996 FIRST NAT. BK. OF MINNEAPOLIS V. MALVERN. [171 • The tractor was delivered, and a demonstration test was made by one Reeder, agent of the company, in the presence of committee of . the city council and the city's street commissioner. The tractor would not pull the Scarifier until six of its nine teeth had been remOved, but the agent stated ' that it would pull the scarifier with all of the teeth in place when the tractor was limbered up. Thereupon the city paid the sum of $500 cash to the company and executed. the three ,notes sued on, two of them being for $425 each and the third for $400. ,The street committee of the pity counPil and the street commissioner also executed a certificate to the effect that the tractor had been tried, found satisfactory, and accepted bY -the city: This certificate was dated March 18, 1920, the day the test was made. - - • The undisputed testimony shows that the tractor would not at . any time pull the scarifier unless most of the- teeth were remoVed, and the removal of the teeth deStroyed largely the efficiency of the scarifier. The testimony also showed that, when the scarifier was operated with only three teeth, -there was constant trouble, with the -tractor, and frequent repairs were .required. The- city -defended upon the ground that the warranty under which the tractor had been sold was breached, and . it- sought .to recoup. damages for •this . breach, which, it alleged, were greater than •the balance of -the unpaid purchase,money. - The first assignment of . error is -that the court erred in- refusing to, give instruction numbered 1, requested by the plaintiff, which, if given, would have diretted the jUry to find.-for the plaintiff the full value of the -notes sued on. No error was committed in refusing to give this instruction. Under the issues joined,-the plaintiff would have been entitled to an instruction telling the jury •o find for the plaintiff for the amount of, the notes, less the credit, if any, allowed as damages ; -but the instruction. requested did not do this, and, as no correct instruction was asked on the right of the plaintiff to recover the
ARK.] FIRST NAT. BK. OF MINNEAPOLIS V. MALVERN. 997 amount of the notes, less the damages, appellant is in no position to complain of the refusal of the court to give its instruction numbered 1. It is insisted that error was committed . in permitting the city to prove the representations made by the company's agent that the tractor would do the work after it had been limbered up, inasmuch as there was an express written warranty which could not be enlarged by parol. testimony. ' Under the issues joined we think this testimony was not incompetent. The plaintiff contended that the written letter of acceptance of the tractor, after it had been tested, showed either that the tractor conformed to the warranty or that the warranty was expressly waived'. The testimony was competent therefore to show the circumstances under which and the purpose for which the . letter of acceptance was written. This testimony does not engraft an additional warranty upon the contract of sale. It merely shows that the warranty was not waived. The case was tried upon the theory that, while the city might have repudiated the purchase of the tractor upon ascertaining that it did not conform to the warranty under which it was sold, it had the right to retain the tractor and, when sued for the balance of purchase money, to recoup against this demand the damages resulting from the breach of warranty. This is the law, and we think the instructions given so declared the law, although one or more of the instructions were not as clear as they might have been, but no specific objections were made. . Parrett Tractor Co. v. Brownfiel, 149 Ark: 566, 233 S. W. 706. We are of the opinion that the question of damages was fairly and properly submitted to the jury, and that no error was committed in the admission of testimony, and we would therefore affirm the judgment, were we not • also convinced that the verdict of the jury ,allowed damages in an excessive amount. It will appear from what we have said that the Suit was, in effect, one for damages for breach of warranty,
998 FIRST NAT. BK. OF MINNEAPOLIS V MALVERN. [171 as the liability, of the city is undisputed, and it sought to discharge that liability by recouping damages: The vekdict of the jury was for the city, thus indicating that the damages were assessed in a sum equal to the unpaid purchase monCy. • • • The testimony shows that three persons 'used . the tractor, these being A. I. Posey, Keith Rutherford, and F. B. Medford, the latter -being the street commissioner at the time the tractor was purchased, and the person who had made the largest use of it. The undisputed testimony shows that the tractor would not pull the scari-fier as warranted, and that, even when the scarifier was used with less than the full number of teeth, it was still ' unsatisfactory, 'and that considerable expense was entailed in attempting to 'use the tractor-in dragging the scarifier at all, but no complaint appears to have been made to the company of this fact, although it was shown that complaint was made on two Occasion's to Reeder, the salesman who demonstrated the tractor, the last being after Reeder had severed his connection with the company: • . But, while the testimony -shows- an unsatisfactory use of the •tractor in connection with the-scarifier, and that it did not otherwise comply with the -warranty, it is also shown by the testimony that the city made large use of the tractor in connection with the grader, and that it had substantial value. The deposition of Medford, who had ceased to be street commissioner and had removed from the city, was taken a'nd offered in-evidence by the city. In this deposition Medford found many faults with the tractor, especially lihen used-in connection wiM-the scarifier,' but he -admitted writing a letter to the company on December 8; 1921, which was more than a year and a half after the tractor had been delivered, in which he ordered certain new parts, and, in identifying the tractor so that the order might be properly filled, he stated : "We have one of your Flour City tractors of the smaller type, with which we have been able to do a wonderful lot of street work,"
ARK.] FIRST NAT. 13K. OF MINNEAPOLIS V. MALVERN. 999 and he admitted in his deposition that this statement was true when the tractor was used for light work. Posey admitted that the tractor would 'handle the scarifier reasonably well . with three teeth; but; even then, they had trouble with it when used for that purpose, and that he was able to make as much use of the tractor as he did only because he was -himself a gdod •mechanic and was constantly adjusting and repairing it; and. that, had he not been a mechanic, it would have been necessary to have carried a mechanic along to use the tractor at all. The witness Rutherford was asked what the tractor was worth compared with what it would have been worth if it had done the work that , the contract of sale guaranteed that it would do, and he answered, not over a third. If, however, we take the answer of thig Witness as the basis on which the jury computed the damages, the fact remains that excessive damages were allowed. The purchase price of the tractor was $1,750, and/the city had paid only $500, so that, if the city were allowed to recoup as damages two-thirds of the purchase price; the company would still have been entitled to a judgment . of one-third of the purchaSe price, which it $83.33 rabie than the sum which the city had paid. A verdict will not be disturbed on appeal upon the ground that excessive damages were allowed if there was evidence to support the verdict (St. L. I. M. & S. R. Co. v. Spann, 57 Ark. 127, 20 S. W. 914), and a finding upon contradictory evidence as to the amount of damages is conclusive on appeal, provided the sum found as damages 'does not exceed the highest aviard sripported by any of the testimony. Glasscock v. National Box Co., 104 Ark. 154, 148 S. W. 248 ; St. L. Sw. Ry. Co. v. Overton, 114 Ark. 98, 169 S. W. 364. We think, when the testimony is viewed-in the light most favorable to appellee, there was no testimony supporting a larger award of damages than does the testimony of Rutherford, arid therefOre damages could not be allowed in a sum exceeding the amount shown by his testimony.
1000 [171 This appears to be the only error in the record, and it may be cured by reducing the damages to a sum not greater than that sustained by Rutherford's testimony, and this error will be cured by such reduction, and the coMpany will therefore be awarded judgment here for $83.33. Collier Commission Co. v. Wright, 165 Ark. 338, 264 S. W. 942; Kansas City Southern Ry. Co. v. Leinen, 144 Ark. 454, 223 S. W. 1.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.