Lawson v. Williams Hardware Co.

• Decision Date: 05 February 1907
• Citation: 99 S.W. 814,122 Mo. App. 484
• Parties: LAWSON et al. v. WILLIAMS HARDWARE CO.
• Court: Missouri Court of Appeals

99 S.W. 814

122 Mo. App. 484

LAWSON et al. v. WILLIAMS HARDWARE CO.

St. Louis Court of Appeals. Missouri.

February 5, 1907.

1. SALES—ACTION FOR PRICE—INSTRUCTIONS.

Plaintiffs sold defendant a wagon under a warranty that they would repair any wheel that might give way through defective material or workmanship. Defendant accepted the wagon, and after two wheels broke down shipped them back to be replaced. There being a delay in their return, defendant several weeks later shipped the wagon back, but plaintiff refused to receive it. Held, in an action by plaintiffs for the price, error to instruct that plaintiffs could not recover if the wheels broke down under ordinary use and thereby became unfit for use.

2. SAME.

It was error to instruct that, if the wheels broke down or became too weak by reason of the spokes becoming loose, thus unfitting the wagon for use, then defendant had a right to refuse to accept it or pay for it.

3. SAME.

An instruction that if defendant on returning the wheels requested plaintiff to send new ones as soon as possible, that plaintiff did not send new wheels, and that the old ones, after being repaired, were not returned within a reasonable time, and by reason of the delay he lost the sale of the wagon, then he had a right to refuse to accept it, was erroneous; it appearing that defendant had written a letter to plaintiff stating, in substance, that the wheels had been returned to be repaired, and the case having been defended on the theory that plaintiff did not exercise reasonable diligence to have the wheels repaired and returned promptly, or new ones sent in their place.

Appeal from Circuit Court, Cape Girardeau County; H. C. Riley, Judge.

Action by W. S. Lawson and others against the Williams Hardware Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

This action was instituted before a justice of the peace to recover the price of a wagon sold by plaintiffs, a firm doing business in Cairo, Ill., under the name of the Three States Buggy & Implement Company. The defendant corporation is engaged in business at Jackson, Mo. The statement filed with the justice alleges that on or about April 8, 1903, at the special instance and request of defendant plaintiffs sold and delivered to defendant a delivery wagon for the price of $42.50, and defendant promised and agreed to pay said price and refused to do so after demand. No answer was filed. The case went to the circuit court on appeal, and from the judgment rendered in the latter court an appeal was taken to this one. The contract for the purchase of the wagon was made by correspondence between the parties. By later correspondence the material facts of the dispute which arose out of the transaction are shown. Defendant ordered the wagon April 3, 1903. The order was for "1 No. 20, W. T. Delivery Wagon," describing some particulars of it which need not be mentioned, because they are not relevant to the controversy. Defendant received the wagon the latter part of April, and turned it over to the customer for whom it had ordered it. The testimony goes to show that within a week after Rehan, the customer, began to use the wagon the two hind wheels gave way under a load of freight much less than they ought to have supported if well constructed. Rehan returned the wagon to defendant, and the latter sent the wheels to plaintiffs April 29, 1903, saying there was no way to fix the wheels except to send new ones, and to do so as soon as possible. On May 4th plaintiffs sent the wheels which had been returned to them to the Wayne Works, a corporation at Richmond, Ind., which had manufactured the vehicle, and directed said corporation to send new wheels to defendant at Jackson, if necessary; if not, to repair the old ones and put them in first-class condition in every respect, and forward them to defendant at Jackson. This letter urged the Wayne Works to give the matter prompt attention, and the Wayne Works replied that prompt attention would be given. Defendant was notified by plaintiffs of these incidents. The next letter is from defendant to plaintiffs under date of June 7, 1903, asking that the bill of lading for the wheels be sent at once, saying there was a hurry to get them, and it would be a great accommodation for them to be sent immediately. On June 9th plaintiffs wrote defendant that the Wayne Works at Richmond had written plaintiffs the wheels were shipped some weeks before, and plaintiffs would look into the affair and see why they had not been received by defendant. Some letters between plaintiff and the Wayne Works show the latter concern had shipped the wheels to defendant at Jackson on May 23d, over the Pittsburg, Cincinnati, Chicago & St. Louis Railroad. The evidence shows this was the direct route from Richmond to Jackson. The wheels arrived at Jackson about the 20th day of June. Rehan wanted to turn the wagon back to defendant about four weeks after the broken wheels had been returned to plaintiffs. On June 15th defendant shipped the wagon to plaintiffs, but plaintiffs never received it. The testimony for plaintiffs goes to show the wheels were repaired as soon as possible. It was necessary to put several coats of paint on them, and, as they were not received by plaintiffs until May 6th, they could not be repaired and returned to defendant earlier than May 23d, something over two weeks thereafter. The wagon was sold on the following guaranty: "All materials are carefully tested before going into the construction of our work as to strength, quality, and durability. And for this reason we are safe in placing the following guaranty for one year on all our vehicles: We warrant our vehicles for one year, and will replace any wheel, axle, or spring that gives way by defective material or workmanship within twelve months from the date of purchase. We insist that broken parts of defectives be returned to us prepaid, in order that they may be presented to foreman of factory to show him where the defects are. It will then be repaired and returned to purchaser by prepaid freight."

The court gave the following instructions:

"The court instructs the jury that if they find from the evidence that defendant did on the 3d day of April, 1903, order from plaintiffs a spring wagon described in the evidence, and if they find that plaintiffs did on the ____ day of April, 1903, ship to defendant in accordance with its order a spring wagon of...