Asadorian Rug Co. v. Chandeysson

• Decision Date: 08 November 1940
• Docket Number: No. 25417.,25417.
• Citation: 144 S.W.2d 199
• Parties: ASADORIAN RUG CO. v. CHANDEYSSON.
• Court: Missouri Court of Appeals

144 S.W.2d 199

ASADORIAN RUG CO. v. CHANDEYSSON.

No. 25417.

St. Louis Court of Appeals. Missouri.

November 8, 1940.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by the Asadorian Rug Company against I. P. Chandeysson to recover balance on purchase price of certain rugs and carpets, and to recover agreed price of one rug delivered to defendant for his approval and never returned. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Earl M. Pirkey, of St. Louis, for appellant.

Alphonso Howe, of St. Louis, for respondent.

SUTTON, Commissioner.

This action was commenced in a justice court, whence it went on appeal to the circuit court. The statement filed with the justice is in two counts. The first count seeks to recover the balance alleged to be due and unpaid on the purchase price of certain oriental rugs and broadloom carpets sold and delivered by plaintiff to defendant. It is alleged that said rugs and carpets were sold at the agreed price of $2,393.08, and that defendant has paid plaintiff thereon $2,000, leaving a balance of $393.08 due and unpaid. The second count is for the recovery of $125, the agreed price of one dergazine runner rug delivered to defendant for his approval and never returned.

The trial, with a jury, resulted in a verdict in favor of plaintiff on both counts of the statement for the total sum of $585.27, including interest. Judgment was given accordingly. Defendant appeals.

The evidence shows that in December, 1936, defendant bought a residence building at Union and Waterman Avenues, in St. Louis. It was a large building, having a living room, dining room, entrance hall, breakfast room, solarium, kitchen, sitting room, and music room, on the first floor, three bedrooms, a dressing room, and two baths on the second floor, and three maids' rooms, a play room, and one bathroom on the third floor.

Charles F. Osborne, an employee of defendant, Mrs. Parker Thomas Finch, a decorator, and defendant's wife selected the rugs and carpets for all the floors in the building. The rugs and carpets were delivered to the building by plaintiff in the latter part of December, just before Christmas, and put down on the floors. The carpets were cut to fit the floors and were tacked down. The rugs were orientals and the carpets were broadlooms. Defendant moved into the building on December 23rd. This was shortly after the rugs and carpets were put down.

Plaintiff's evidence is to the effect that the rugs and carpets, except the dergazine runner rug, were purchased at prices agreed upon when they were delivered and put down on the floors, the prices agreed upon aggregating $2,393.08. On January 7, 1937, plaintiff sent defendant a bill for all the carpets and rugs delivered, except the dergazine runner rug. On the same day, after receiving the bill, defendant phoned A. H. Asadorian, president of plaintiff Asadorian Rug Company, requesting him to call at his office. In response to this request Asadorian went to defendant's office, where a conversation was had concerning the bill for the rugs and carpets.

According to Asadorian's version of what was said and done at the office, he asked defendant if the rugs and carpets were satisfactory, to which defendant replied, "perfectly all right, everything beautiful." He then asked defendant for something on account. Defendant gave him a check for $2,000, but he refused to accept it because there was written on the back of it "in full payment." He told defendant he could not accept it. Defendant tried to get him to receipt the bill in full. He said to defendant: "I can never receipt the bill while it is not fully paid at all." Defendant wanted him to reduce the price. He told defendant he could not do it. Defendant called the young lady bookkeeper, and told her to make out a check for $2,000. He said, "Make out a $2,000 check for him on account." The check was made out and handed to him with the endorsement "in full payment" on it. He told defendant he could not accept the check. Defendant then told him that he would pay the balance. They both agreed that the endorsement be scratched off the check, and this was then done by Asadorian in the presence and with the consent of defendant. Asadorian credited the $2,000 on the bill and took the bill and check away with him. He afterwards endorsed and cashed the check.

The dergazine runner rug was not included in the bill presented because it was put on the floor for approval and was to be exchanged for another rug. Asadorian wrote defendant that he had a suitable rug to make the exchange, but got no response, and the exchange was never made and the rug was never returned.

According to defendant's version of what occurred at his office, he said to Asadorian: "What do you mean by sending me a bill? I haven't bought anything from you yet." After some discussion he made Asadorian an offer of $2,000 for the rugs and carpets that were in his house, including the dergazine runner rug. Asadorian said he couldn't do that, but finally accepted it. Defendant then went to the young lady that takes care of the checks and told her to make a check to Asadorian for $2,000 and mark it, "in payment in full for all the rugs and merchandise that are in my house." She made out the check as directed and brought it into defendant's office and handed it to him to sign. He signed it and handed it back to her and she handed it to Asadorian. Asadorian asked defendant if he wanted him to receipt the bill. Defendant replied that he did not care to have the bill receipted as the endorsement of the check would be a sufficient receipt. Asadorian took the check and endorsed it, but did not scratch anything out and did not make any objection to the check or to the endorsement on the back of it.

Defendant testified that he did not buy the rugs and carpets in December, but the carpets were put down on the floor merely for exhibition, and that he did not buy the carpets until January 7, 1937; that he purchased them in his office for $2,000, and gave his check therefor.

Asadorian testified that on several occasions after receiving the check for $2,000 he mailed defendant requests for remittance of the balance due, but got no response. He finally mailed him a registered letter without avail. He then brought this suit.

Dolores Bundschuh testified for defendant that she was in the employ of defendant and at his request wrote the check for $2,000 delivered to Mr. Asadorian, and wrote on the back of the check a notation of payment in full for all carpets and rugs at 5314 Waterman Avenue.

Error is assigned by defendant here for the refusal of his instruction in the nature of a demurrer to the evidence. This assignment is put on the ground that plaintiff accepted the check with the endorsement, "in full for all carpets and rugs at 5314 Waterman Avenue," on it, and that this amounted to a satisfaction of plaintiff's demand, and that plaintiff could not alter the effect of such acceptance by crossing out such endorsement. As to this, it will suffice to observe that the evidence shows that plaintiff did not accept the check with the endorsement thereon, but...