Beck & Corbet Iron Co. v. Holbeck

• Decision Date: 07 November 1904
• Citation: 82 S.W. 1128,109 Mo. App. 179
• Court: Missouri Court of Appeals
• Parties: BECK & CORBET IRON CO. v. HOLBECK.

82 S.W. 1128

109 Mo. App. 179

BECK & CORBET IRON CO. v. HOLBECK.

Kansas City Court of Appeals. Missouri.

November 7, 1904.

SALES — IMPLIED WARRANTY — EXPRESS CONTRACT — CONCLUSIVENESS.

1. Where personalty is bought for a particular purpose, known to the seller, and the buyer does not inspect the goods, but trusts to the judgment of the seller, there is an implied warranty that the goods will be reasonably fit for that purpose.

2. Where goods are sold by exact description, there is an implied warranty that the goods are of the description contracted for

3. Where there is an express contract of sale, the terms of the contract govern, and nothing is implied.

4. Where, in a contract of sale, it was agreed that the seller's inspection of the quality of the goods should be conclusive, the inspection made by him could not be set aside without a showing that he acted fraudulently.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by the Beck & Corbet Iron Company against William B. Holbeck. From a judgment for defendant, plaintiff appeals. Affirmed.

White & Lacy, Finkelnburg, Nagel & Kirby, and Truman P. Young, for appellant. Robt. W. Barrow, Dysart & Mitchell, and Joseph Park & Son, for respondent.

BROADDUS, J.

This suit is to recover part payment made by plaintiff on the purchase price of wagon axles sold and delivered by defendant to plaintiff, and also for damages alleged to have been sustained by plaintiff for breach of contract. The contract was made by telegrams and letters that passed between the parties. On February 16, 1903, plaintiff wrote to defendant as follows: "We have just wired you as follows: `Will take two thousand axles. Have written in full. Answer.' In explanation, Mr. Green wrote us a few days ago, Feb. 11th, that you would let us have 2,000 4×5 axles one year old, at 50c. each, and all guaranteed first-class, above price, f. o. b. Atlanta. We would ask that you ship one large carload of these axles, say 1,000 pieces, to Fish Bros. Mfg. Co., Clinton, Iowa, at lowest obtainable freight rates, sending us B-L and invoice. We will give shipping instructions for the balance of the lot at an early date." To this defendant made the following answer: "Sis your lette regarding wagon axels would sate I told Mr. Green I could spare about 2000 wagon axels 4×5 and would take 50 cents a piece F. O. B. Atlanta hoever Bought them stand my inspection and I would garrantee not to put in a stick that would not make a wagon axel but as far as garrenteed them first class that was not named and I would not think of such a thing as that would give all kinds of room for troble I think they are good axels and in fact I know it I sold Joel Youny ["?"] Wagon Co. 3 car loads and Biggs & G. 1 car load and they called them good what they got now if you want to stand my inspection I will load out a car. Reptfloy, W. B. Holbeck." To this, plaintiff replied by telegram February 16, 1903, as follows: "Will take two thousand axles. Have written in full. Answer." The letter is as follows: "Feb. 17, 1903. Replying to the latter part of your letter 16th inst. We request that you go ahead and ship the carload to Clinton, Iowa, as requested in our letter of yesterday. Our understanding of the offer made to Mr. Green is the same as stated in your letter, that is, that every axle was to be first class — that is, merchantable goods and suitable in every way for making axles. Would like very much to have you load a full half of the quantity if possible, as we want to make two cars of the entire lot of axles, so if you fall short of the 1,000 axles in the first car the balance would have to be put into two cars, and there would hardly be sufficient for that purpose." Defendant answered on February 20th, which answer, after stating it would take several days to get a car for the shipment, is as follows: "* * * Now once more I want to say I shall inspect the car of axels my self and shall handle every one my self before they are loaded in car I shall not aim to a stick in car that wont make a axel in the first place I received nearly all the axels I have bought and have been very Particular to get what I called good ones and of corse after axels have been Housed a good while as these axels are and pretty well seasoned than will be some to throw...