The National Cash Register Co., a Corp. v. Layton

Citation232 S.W. 1091,207 Mo.App. 454
PartiesTHE NATIONAL CASH REGISTER CO., a Corporation, Appellant, v. G. W. LAYTON and JAMES R. JOYCE, a Co-partnership, doing Business as the VAN DUSER SUPPLY COMPANY, Respondents
Decision Date18 June 1921
CourtCourt of Appeal of Missouri (US)

Appeal from Scott County Circuit Court.--Hon. Frank Kelly, Judge.

AFFIRMED.

Judgment affirmed.

Gresham & Blanton for appellant.

(1) Where there is an express warranty in the sale of personalty there is no implied warranty as to same matter. Fairbanks Co. v. Basket, 71 S.W. 1113, 98 Mo.App. 53; International Co. v. Smith et al., 17 Mo.App. 264; Advance Co. v. Briggs Company, 206 S.W. 587, 588 (not off. rept.) (2) Where a contract shows on its face that it composes the entire contract between the parties, it cannot be varied to show an implied warranty. Boulware v Victor Auto Mfg. Co., 134 S.W. 7, 152 Mo.App. 567; Iron Co. v. Holbeck, 82 S.W. 1128, 109 Mo.App. 179; Fairbanks v. Baskett, 71 S.W. 1113, 98 Mo.App. 53; Wood Co. v. Bobbst, 56 Mo.App. 433; Boyer v. Neel 50 Mo.App. 26; 17 Cyc., p. 716, par. "C." (3) Where parties by their contract incorporate therein a conditional warranty, before the vendee can rescind for its breach he must comply with the condition precedent. Jenkins Sons v Kindle, 180 S.W. 557; Kirk v. Seeley, 63 Mo.App. 262. (4) A vendee can exercise the right of rescission only when the right is exercised immediately and by immediately is meant a reasonable time--not to consider whether to rescind or not--but to do those things necessary to rescind, and must be accompanied by a tender. 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. 866, 172 Mo.App. 90; Long v. International Co., 139 S.W. 819, 158 Mo.App. 662; Metropolitan Co. v. Monarch Co., 74 Mo.App. 266; Johnson v. Whitman Co., 20 Mo.App. 102; Steam Heating Co. v. Gas Fixture Co., 60 Mo.App. 153; Kirk v. Seeley, 63 Mo.App. 262; Marth v. Wiskerchen, 172 S.W. 410, 186 Mo.App. 515; St. Louis Co. v. Loevenhart, 190 S.W. 627; Harper v. Wilson, 191 S.W. 1024; Manley v. Crescent Co., 77 S.W. 489, 103 Mo.App. 135. (5) A vendee undertaking to rescind a purchase on the ground that the article is worthless, and who does not plead damages by way of offset, cannot prevail either if he does not sustain his plea of rescission, or if the article, while less valuable than warranted, yet is not worthless, and in either case the vendor is entitled to a directed verdict. Outcault Co. v. Schierbaum, 209 S.W. 982; Riverside Co. v. Bendict Co., 201 S.W. 584; Allaire Co. v. Cole, 187 S.W. 816; Emery Co. v. Boehmer Co., 151 S.W. 174, 167 Mo.App. 703; Dayton Box Co. v. Danciger, 143 S.W. 855, 161 Mo.App. 640; Sinnamon v. Moore, 142 S.W. 494, 161 Mo.App. 168. (6) Where the facts are undisputed and lapse of time is such that fair minded men will not differ, it becomes the duty of the court to declare such as a matter of law, if the delay in rescinding has been so unreasonable as to deprive the vendee of that right. Emery v. Boehmer Co., 151 S.W. 174, 167 Mo.App. 703; Metropolitan Co. v. Monarch Co., 74. Mo.App. 266; Sterling Silver Co. v. Worrell, 154 S.W. 866, 172 Mo.App. 90; Riverside Co. v. Benedict Co., 201 S.W. 584, 588; Boyer Co. v. City of Milan, 199 S.W. 712; Johnson v. Whitman Co., 20 Mo.App. 102; Steam Heating Co. v. Gas Co., 60 Mo.App. 154; Sinclair Oil v. McGuire Co., 221 S.W. 378. (7) Where vendee claims the absolute right of rescission, but instead of standing on that right and either has the vendor repair the defects, or undertakes to use the machine after attempting to rescind, the vendee loses his right to rescind, and cannot then later undertake to exercise it. Lawson v. Williams Co., 122 Mo.App. 484; Sturgis v. Whisler, 130 S.W. 113, 145 Mo.App. 148; Faust v. Koers, 86 S.W. 279, 111 Mo.App. 560; Riverside Co. v. Benedict Co., 201 S.W. 584; Block v. Martin, 129 S.W. 715, 150 Mo.App. 82. (8) An instruction on the whole case must be so framed as to justify a recovery on the hypothetical facts therein stated, without excluding from the consideration of the jury the evidence or theory offered by the adverse party. Wood Machine Co. v. Bobbst, 56 Mo.App. 433; St. Louis Carbon Co. v. Loevenhart, 190 S.W. 627; Stepham v. C. B. & Q. Ry., 199 S.W. 273, 274; Daso v. Jefferson City, 189 S.W. 400. (9) Instructions must not change the issues as made by the pleadings, nor widen their scope. Sinnamon v. Moore, 142 S.W. 494, 161 Mo.App. 168; Scrivner v. Mo. P. Ry., 169 S.W. 83, 260 Mo. 421; Rawlings v. Frisco Ry., 175 S.W. 935; Moss v. Jacksonville Co., 226 S.W. 592. (10) Where vendor receives goods returned by vendor upon an attempted rescission, but holds them subject to the order and at the risk of the vendee, he does not accept them in satisfaction of the purchase price, but may recover that price. Brown v. Gilpin, 96 S.W. 669, 120 Mo.App. 130; Sturgis v. Whisler, 130 S.W. 111; 145 Mo.App. 148. (11) Instruction must be within both the proof and the pleadings, and must not be broader than the proof, though the pleadings would justify broader instructions. Riley v. City of Independence, 167 S.W. 1022, 258 Mo. 671.

Ward & Reeves for respondents.

(1) "Anyone manufacturing and selling a machine is held in law to warrant that the machine is reasonably fit for the ordinary purposes for which such a machine is put upon the market and sold." Boulware v. Manufacturing Co., 152 Mo.App. 575; Fairbanks, Morse & Co. v. Baskett, 98 Mo.App. 70. (2) Where there is a warranty, either express or implied, in the sale of goods, and a breach of the warranty, the purchaser may rescind the contract and return the goods, or he may retain the goods and show the breach of warranty as a partial or total failure of consideration when sued for the contract price. Atkins Bros. Co. v. Grain Co., 119 Mo.App. 119; Schoenberg v. Loker, 88 Mo.App. 387; Brewing Assn. v. McEnroe, 80 Mo.App. 429; Brown v. Wardon, 99 Mo. 564; Branson v. Turner, 77 Mo. 489.

COX, P. J. Farrington and Bradley, JJ., concur.

OPINION

COX, P. J.

Action on a note. Judgment for defendants and plaintiff appealed.

The petition is in the usual form of an action on a promissory note. The answer admits the execution of the note and then alleges that the note was given as and for the purchase price of a cash register. That the machine was purchased for use in a store and that it would not work but was worthless. That complaint was made to plaintiff and plaintiff sent a man to fix same but without avail and plaintiff authorized and requested defendants to ship the machine back if it failed to work and after defendants had thoroughly tested and tried it, they sent it back because it was useless to them and because there was a breach of warranty and the machine would not work and that said register was received and accepted by plaintiff and is still retained by it.

The reply then sets out in full the order for the cash register signed by defendants and addressed to plaintiff. The material parts of this order as far as the issues in this case are concerned are as follows: "Should the register get out of order from ordinary use within one year from shipment, you will without charge repair it provided undersigned pays the transportation charges on it to and from the factory or nearest agency to make repairs or traveling expenses for repairman. . . . This contract covers all agreements between the parties and shall not be countermanded." Plaintiff then alleges that it has complied with all the terms of the contract; denies that the register failed to function; alleges that there was no warranty on the part of plaintiff and that the written contract controlled and provided the only remedy open to defendants. Denies any rights of rescission and alleges further that if such right ever existed, it was lost by the delay of defendants in attempting to exercise it.

Plaintiff introduced the note and rested. Defendants then offered testimony to show that the machine was received sometime in June, 1919. When received, it would not work and they wrote plaintiff that it was locked and asked that a man be sent to unlock it. In about a month thereafter (plaintiff says on August 5th) a man came and he could not operate it but opened some part of it and after working on it, got it so it would work. Defendants then used it three or four days when it locked again and would not work. On August 22nd, they shipped the machine back to plaintiff and wrote the following letter "We are sending back that cash register as we cannot use it." No reason was given why they could not use the machine. Some correspondence followed and on September 22nd, plaintiff wrote defendants intimating that suit might be brought if payment under the contract was not made and demanded that a payment then due be made. This letter was returned to plaintiff with an unsigned pencil note at the bottom as follows: "That register was guaranteed to give satisfaction and it don't so I sent it back and I can prove that man said if it don't suit for not to keep it." On October 7, 1919, plaintiff wrote defendants from which we quote the following: "You recently advised that the register which we shipped you was not satisfactory. This is the first information we have had of any complaint from you regarding the operation of the register." On October 16th, plaintiff wrote defendants that the machine was being held subject to their order and stating that the matter was being referred to its attorney for suit. On October 18th, the attorney wrote defendants that suit would be filed as soon as the papers could be prepared. On November 4th, defendants wrote plaintiff that they had bought the register under contract, that it was to give complete satisfaction and to be in perfect...

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