Emery v. G. H. Boehmer Shoe Co.

Decision Date12 November 1912
PartiesEMERY et al. v. G. H. BOEHMER SHOE CO.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Harry R. Emery and another against the G. H. Boehmer Shoe Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

D. D. Holmes, of St. Louis, for appellant. Claud D. Hall, of St. Louis, for respondents.

NORTONI, J.

This is a suit on an account for goods sold and delivered, amounting in all to $1,405.15, with interest thereon. At the conclusion of all of the evidence, the court peremptorily instructed a verdict for plaintiffs, and defendant prosecutes the appeal.

Plaintiffs are copartners, and as such engaged in the business of manufacturing shoes in Massachusetts. Defendant is a retail shoe merchant in St. Louis. It appears that defendant purchased the shoes involved, by sample, through plaintiffs' salesman, and they were manufactured by plaintiffs and shipped accordingly. The shoes were shipped in two consignments. The first consignment was received by defendant at its store in St. Louis on April 29, 1908, and the second consignment on May 11th of the same year. Immediately upon the receipt of the shoes, April 29th and May 11th, defendant unpacked and placed them in stock for sale. Upon unpacking the shoes defendant marked each pair with a lead pencil, indicating the size, width, stock, make, pair, price, etc., and commenced selling therefrom to the trade. After having sold a number of pairs of shoes and kept them in stock for about two weeks, defendant, on May 25, 1908, wrote plaintiffs to the effect that lot Nos. 231 and 232 were checked, and the buckles on pumps were tarnished, and therefore they did not deem it advisable to keep them, and asked shipping instructions from plaintiffs. In due course plaintiffs replied that they expected defendant to keep the shoes, as they were manufactured for them, and no complaint had been made within a reasonable time. Finally, on June 12th defendant returned the shoes to plaintiffs, but they refused to receive them. Upon this showing the court instructed a verdict for plaintiffs, on the theory that defendant had waived its right to rescind the contract of purchase through not acting promptly with respect to the matter.

It is urged the court erred in this ruling; but we are not so persuaded. Defendant had sold some of the shoes, and made no effort to return all of them to plaintiffs. Indeed, it tendered only such as remained unsold in its store at the time. The law not only requires a disaffirmance of a contract of sale at the earliest practical moment after discovery of the defect, but a return of all that has been received under it, and a restoration of the vendor to the condition in which he stood before the contract was made. See Tower v. Pauly, 51 Mo. App. 75; Cobb v. Hatfield, 46 N. Y. 533, 537. Indeed, it stands upon the most obvious justice and equity that the seller should be apprised promptly if there is any objection, and the vendee intends to reject the...

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21 cases
  • Kesinger v. Burtrum
    • United States
    • Missouri Court of Appeals
    • August 17, 1956
    ...Mfg. Co., 103 Mo.App. 135, 77 S.W. 489, 490(3). Consult also Davidson v. Gould, Mo.App., 187 S.W. 591, 593; Emery v. G. H. Boehmer Shoe Co., 167 Mo.App. 703, 151 S.W. 174(2); annotation 72 A.L.R. 726.14 Schurtz v. Cushing, 347 Mo. 113, 146 S.W.2d 591, 594(1); Hoback v. Allen, Mo.App., 216 S......
  • Bisesi v. Farm & Home Sav. & Loan Ass'n of Mo.
    • United States
    • Missouri Court of Appeals
    • February 5, 1935
    ... ... was brought. 55 C. J., page 290; Emery v. Shoe Co., ... 167 Mo.App. 703, 151 S.W. 174. (6) Statutes of Limitations ... are favored in ... ...
  • Minneapolis-Moline Power Implement Co. v. Wright
    • United States
    • Kansas Court of Appeals
    • November 7, 1938
    ...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. 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. Mach......
  • The National Cash Register Co., a Corp. v. Layton
    • United States
    • Missouri Court of Appeals
    • June 18, 1921
    ... ... Sinclair ... Co. v. McGuire Co., 221 S.W. 378; Emery v. Boehmer ... Co., 151 S.W. 174, 167 Mo.App. 703; Sterling Silver ... Co. v. Worrell, 154 S.W ... ...
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