Alabama Steel & Wire Company v. Symons
| Citation | 83 S.W. 78,110 Mo.App. 41 |
| Parties | ALABAMA STEEL & WIRE COMPANY, Respondent, v. ARTHUR E. SYMONS et al., Appellants |
| Decision Date | 19 December 1904 |
| Court | Court of Appeals of Kansas |
June 20, 1904;
Rehearing Denied 110 Mo.App. 41 at 52.
Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.
REVERSED AND REMANDED.
Cause affirmed.
Karnes New & Krauthoff for appellants.
(1) The first instruction given by the circuit court on behalf of the plaintiff reduced to its last analysis, told the jury: (a) If defendants accepted the nails; (b) If defendants knew they were inferior in quality or not the quality of nails contracted for and ordered by defendants; (c) Then defendants can not now object to the quality, and (d) Your verdict must be in favor of plaintiff for the amount sued for. New Birdsall Co. v. Keys, 99 Mo.App. 463, and cases cited; Brown v. Wellon, 27 Mo.App. 251, 99 Mo. 564; Werner v. O'Brien, 40 Mo.App. 489; Miles v Withers, 76 Mo.App. 87; Assn. v. McEnroe, 80 Mo.App. 429; Schoenberg v. Loker, 88 Mo.App. 387; June v. Falkinburg, 89 Mo.App. 571. (2) The first instruction given on behalf of plaintiff is also open to the objection that it submits to the jury a question of law; that is to say the jury are told that if "the defendants accepted the nails" certain results would follow. It is respectfully submitted what is an acceptance is a question of law. (3) The second instruction given on behalf of the plaintiff is erroneous in that it submits to the jury an issue not made by the pleadings and not disclosed in the evidence. (4) The jury are told in the third instruction given for the plaintiff that "defendants can not off-set or have allowed to them any damage or loss by reason of such defective nails, if any, which damage or loss was not fairly in the contemplation of both parties at the time the contract for said nails was made." This instruction is also erroneous because submitting a question not raised by the pleading and not disclosed in the evidence.
Lathrop Morrow, Fox & Moore for respondent.
(1) Instruction numbered one complained of by appellants is sound in principle and supported by the authorities. 24 Am. and Eng. Ency. of Law (2 Ed.), 1092; Stevens v. McKay, 40 Mo. 224; Crawford v. Elliott, 78 Mo. 497; Lumber Co. v. Warner, 93 Mo. 374; Water, etc., Co. v. Lamar, 140 Mo. 145; Assn. v. Gorman, 76 Mo.App. 184; Ashford v. Schoop, 81 Mo.App. 539; Cook v. Finch, 117 Ga. 541, 44 S.E. 95; Lee v. Bangs, 43 Minn. 23, 44 N.W. 671; Rosenfield v. Swenson, 45 Minn. 190, 47 N.W. 718; Thompson v. Libby, 35 Minn. 443, 29 N.W. 150; McClure v. Jefferson, 85 Wis. 208, 54 N.W. 777; Jones v. McEwan, 91 Ky. 373, 16 S.W. 81, 12 L. R. A. 399; Pierson v. Crooks, 115 N.Y. 539, 22 N.E. 349, 12 Am. St. Rep. 831; Williams v. Robb, 104 Mich. 242, 62 N.W. 352. (2) The instruction complained of is not open to attack under any theory, in view of the pleadings in this case. 24 Am. and Eng. Ency. of Law (2 Ed.), 1126; 19 Ency. Pl. and Pr., 44; 2 Mechem, Sales, secs. 1311, 1320, 1350, 1391; Blashfield, Instructions to Juries, sec. 84; Graff v. Foster, 67 Mo. 512; Wade v. Scott, 7 Mo. 509; Gordon v. Bruner, 49 Mo. 570; Northrup v. Ins. Co., 47 Mo. 443; Bank v. Armstrong, 62 Mo. 59; Christian v. Ins. Co., 143 Mo. 460; Garvey v. Hauck, 85 Mo. 14; Calhoun v. Paule, 26 Mo.App. 274; Long Bros. v. Armsby Co., 43 Mo.App. 253; Fenwick v. Bowling, 50 Mo.App. 516; Smith v. Rembaugh, 21 Mo.App. 390; Shepherd v. Padgitt, 91 Mo.App. 473; Brown v. Weldon, 27 Mo.App. 251; Stevens v. Supply Co., 67 Mo.App. 587; Bank v. Westlake, 21 Mo.App. 565; Matson v. Frazer, 48 Mo.App. 302; Wright v. Fonda, 44 Mo.App. 634; Kirby v. Railroad, 85 Mo.App. 345; Fegan v. Seed, etc., 92 Mo.App. 236; Smith v. Coe, 170 N.Y. 162, 63 N.E. 57; Weil v. Unique, etc., Co., 80 N.Y.S. 484; Knable v. Stove Co., 19 Misc. (N. Y.) 152; Paving Co. v. Gorman, 103 Mich. 403, 61 N.W. 665, 27 L. R. A. 96; Parks v. O'Connor, 70 Tex. 377, 8 S.W. 104; Day v. Mapes-Reeves Co., 174 Mass. 412, 54 N.E. 878; Obery v. Lander, 179 Mass. 125, 60 N.E. 378; Maynard v. Render, 95 Ga. 652, 23 S.E. 194; Misner v. Granger, 4 Gil. (Ill.) 69; Shirk v. Mitchell, 137 Ind. 185, 36 N.E. 850; Case v. Grim, 77 Ind. 565; Blumenthal v. Grember, 130 Cal. 384, 62 P. 599; Schopp v. Taft, 106 Iowa 612, 76 N.W. 843. (3) The other points raised by appellants are frivolous. Webster's Dictionary; The Century Dictionary; Standard Dictionary; Stevens v. McKay, 40 Mo. 224; Greenleaf v. Hamilton, 94 Me. 118, 46 A. 798; Ellis v. Tips, 16 Tex. Civ. App. 82, 40 S.W. 524.
OPINION
The petition alleges that, "plaintiff sold, furnished and delivered to defendants at defendants' instance and request, goods, wares and merchandise during the year 1901 to the aggregate amount and of the aggregate value of $ 2,321,99; that said defendants are entitled to credits thereon to the aggregate amount of $ 1,714.70 . . . that said goods, wares and merchandise were of the kinds, quantities and qualities as shown by itemized statement of account, and were sold and delivered upon the dates as therein given, and that the prices therefor, as shown by said itemized statement of account, are reasonable and proper prices of and for said goods, wares and merchandise, and the prices agreed upon by and between plaintiff and defendant, and that the balance unpaid on said account is $ 607.29."
The answer admits the sale and delivery of the nails, but avers that the nails so sold and delivered were defective in that the heads of the same were not sufficiently broad, the points were poor and they were not uniform in length; and that a large number of them were bent, and varied in length, some of them being an inch shorter than other nails in the same keg. The answer further avers that the nails delivered were not of the value paid for them and that defendants owe plaintiff nothing. The answer however alleges that defendants paid plaintiff $ 4,815.11 for nails delivered.
The reply, after denying the new matter set up in the answer, states: "In the month of May, 1902, plaintiff sold and delivered to defendants $ 1,588.28 worth of nails, which defendants paid, less a discount of $ 35.20; and during said month also sold and delivered to defendants $ 1,512.13 worth of nails which they paid, less a discount of $ 33.61; but that the sale of the last named nails was made prior to the sale of nails for the balance of the purchase price for which the suit is brought."
On May 4, 1901, the defendants made an order on plaintiff for 5,000 kegs of wire nails (the nails in controversy), 3,000 kegs of which were to be shipped to Chicago, and 2,000 kegs to Kansas City, Missouri. On the same day, the defendants addressed to plaintiff a letter in reference to said nails which, among other things, contained the following: Plaintiff accepted the order and made and shipped four car loads of nails. Defendants asked and obtained an extension for sixty days' time to pay for a part of the nails which had been delivered, and the balance of the order was countermanded. Forty kegs of the nails were returned to plaintiff. Except those returned, all the nails shipped, after being examined by defendants, were received and disposed of by them to their customers.
The evidence of the plaintiff tends to show that the nails in question were made to conform substantially in compliance with the specifications. One of the witnesses examined four kegs of those returned. He stated that there were about 30,000 nails to the keg; and that he emptied them from the kegs and upon careful examination, after going over 130,000 nails, he found only 193 that were defective and 175 of a different size. Defendants' evidence was to the effect that the nails were defective. Some of them shorter than others; some without points; some bent; and others with small heads. The estimate of one of defendants' witnesses was that one-third of the nails the defendant received were defective. It is admitted that defendants received and used the nails knowing that they were defective. After some of the nails had been shipped, defendants complained to plaintiff that they were defective in the particulars mentioned, but did not offer to return them, other than the forty kegs reshipped to plaintiff, as stated, and for which credit was given. The finding and judgment were for the plaintiff and defendants appealed.
The only issue made by the pleadings was the value of the nails received by defendants, as the contract price alleged in the petition was not denied. On the issue thus presented the respective parties introduced their evidence. The principal error complained of by defendants was the giving of instruction number one on behalf of plaintiff, which is as follows:
"The court instructs the jury that if you believe from the evidence that the defendants accepted the nails for the purchase price of which this suit is brought, knowing they were inferior in quality, or not the quality of nails contracted for and ordered by defendants, then defendants can not now object to the quality, and your verdict must be in favor of plaintiff for the amount sued for." The objection to the instruction is that under the evidence there was an implied warranty at least that the nails were to be of a certain quality; and such being the case, defendants had the right to retain the nails and show the difference between the contract price and their actual value in diminution of such contract price. The question raised has been before the supreme and appellate courts of...
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