Manley v. Crescent Novelty Mfg. Co.

Decision Date01 December 1903
Citation77 S.W. 489,103 Mo.App. 135
PartiesMANLEY, Respondent, v. CRESCENT NOVELTY MANUFACTURING COMPANY, Appellant
CourtMissouri Court of Appeals

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

REVERSED AND REMANDED.

STATEMENT.

This action was begun before a justice of the peace, of the city of St. Louis, by filing the following statement:

"Crescent Novelty Mfg. Co., to J. S. Manley, Dr.

By amount paid by J. S. Manley to

Crescent Novelty Mfg. Co., ac-

count 75 cutters, charged at $ 2.25

apiece, which cutters were not ac-

cording to the contract

$ 168 75

Damages because of the failure of the

Crescent Novelty Mfg. Co. to

manufacture and deliver cutters

according to the contract

350 00

$ 518 75

To credit:

1 Ret'd Stamp

$ 3 00

$

48 Disc. at 35 c

16 80

19 80

$ 498 95"

A counterclaim was filed by defendant consisting of an account composed of sundry items showing a balance of $ 58.05 claimed, but as the verdict of the jury was in favor of plaintiff for $ 155.85, and for defendant on its cause of action against plaintiff for $ 19.80, obviously the credit voluntarily given, no further consideration need be given thereto.

At the opening of the trial, before any evidence had been introduced, defendant moved the court to exclude all evidence on plaintiff's first item on the ground that it stated no cause of action against defendant, in that it contained no allegation that plaintiff offered to deliver back the articles sold, the price whereof plaintiff sought to recover which motion was overruled, and the trial proceeded. At the completion of plaintiff's testimony, the defendant moved the court to require plaintiff to elect upon which of the causes of action stated, he would go to the jury and the motion being sustained, plaintiff elected to stand upon the first item based on the claim that the contract had been rescinded.

The testimony established a contract by correspondence between the parties, written from Anniston, Alabama, and St. Louis Missouri, by which defendant undertook to manufacture and deliver, on board cars at city of St. Louis, one hundred cotton-bale tie cutters, at price of $ 2.25 each, the arms of which should be made of cast steel, the discs to be constructed of best tool steel, and to be finished and manufactured in conformity to a sample implement made and submitted by defendant to plaintiff, to be first-class work in every respect, with wooden handles and arms above them japanned, all portions of the cutters to be of a standard size and made so as to be interchangeable. Defendant undertook the execution of the contract and delivered in part performance seventy five of the tools: testimony, oral and epistolary, was introduced by plaintiff establishing the contract and tending to prove that the cutters delivered were not manufactured in compliance therewith, and the defendant offered evidence to the contrary.

Judgment reversed and cause remanded.

Geo. W. Lubke, Jr., for appellant.

(1) The item of plaintiff's statement which he elected to stand on states no cause of action against defendant, because it does not aver the facts constituting and essential to a rescission of the contract between plaintiff and defendant, in that it omits to allege a tender back of property sold within a reasonable time after a discovery of the alleged defect. Tower v. Pauly, 51 Mo.App. 75; Robinson v. Siple, 129 Mo. 208; Feld v. Roanoke Investment Co., 123 Mo. 603. The instructions asked by defendant, and refused should have been given, because: (a) A party seeking to rescind a contract of sale must tender back the thing sold and place the other party in statu quo; and where he is not in a position to return the chattel he can not rescind the contract. Tower v. Pauly, 51 Mo.App. 75; Robinson v. Siple, 129 Mo. 208; Feld v. Roanoke Investment Co., 123 Mo. 603. (b) One who seeks to rescind a contract of sale of personal property, must exercise his right to do so promptly, within a reasonable time after the happening of the cause which gives him the right to do so; and where the delay is unreasonable or is without excuse or fair explanation, the court should, as a matter of law, declare the same unreasonable. World Publishing Co. v. Hall, 81 Mo.App. 277; Tower v. Pauly, 51 Mo.App. 75; Pierce Steam Heating Co. v. Sigel Gas Fixture Co., 60 Mo.App. 148; Viertel v. Smith, 55 Mo.App. 617; Johnson v. Whitman Agricultural Company, 20 Mo.App. 100. (c) Where there is no controversy as to the facts, the question of what is a reasonable time is one of law, and must be determined by the court. Metropolitan Rubber Co. v. Monarch Rubber Co., 74 Mo.App. 26; Tower v. Pauly, 51 Mo.App. 75; McKeen v. Bank, 74 Mo.App. 281; State ex rel. v. Hall, 45 Mo.App. 298; Skeen v. Springfield Engine, etc., Co., 34 Mo.App. 485; State ex rel. v. Goetz, 131 Mo. 675.

Abbott & Edwards for respondent.

(1) The items of plaintiff's statements, on which recovery was had, states a cause of action against defendant. This suit was instituted before a justice of the peace, and all that is required in pleading before a justice of the peace is, that the pleading must be sufficient to advise the other party with what he is charged, and be sufficiently definite to bar another action. Beyond this no formal precision is requisite. Wilkinson v. Ins. Co., 54 Mo.App. 661; Reeds v. Lee, 64 Mo.App. 683; Lemon v. Lloyd, 46 Mo.App. 452; Bauer v. Barnett, 46 Mo.App. 654. (2) The court did not err in admitting all of plaintiff's letters of December 7, 1901. (3) Plaintiff's evidence showed that he was able to return all of the cutters, and to place the defendant in statu quo.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J. (after stating the facts as above).

1. The statement of his cause of action filed in magistrate's court by plaintiff at inception of the proceeding was sufficient: formal pleadings on part of either plaintiff or defendant are expressly dispensed with by statute in a justice's court, and a statement sufficiently specific to inform the opposite party of the basis and character of the demand asserted, and to bar a subsequent action founded upon the same facts, is a full compliance with the statutory requirement. R. S. 1899, sec. 3852; Johnson v. Kahn, 97 Mo.App. 628, 71 S.W. 725. While the recitals of plaintiff's complaint do not contain all the allegations sufficient to constitute the cause of action sought to be upheld by the proof introduced, the statute's liberal provisions are met and satisfied.

2. The delivery of the cutters from time to time as manufactured seems to have proceeded, till September 27, 1901, when final shipment was made completing the total number delivered as stated. By letter of October 20th, plaintiff made a series of objections to the tools received, enumerating various defects and imperfections, and concluding with a declaration that he...

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