Avil Pub. Co. v. Bradford

• Decision Date: 05 November 1906
• Citation: 97 S.W. 238,121 Mo. App. 577
• Parties: AVIL PUB. CO. v. BRADFORD.
• Court: Missouri Court of Appeals

97 S.W. 238

121 Mo. App. 577

AVIL PUB. CO. v. BRADFORD.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

1. SALES — OFFER TO RESCIND — PLEADING — NECESSITY OF COUNTERCLAIM.

One sued on an order for goods may set up a variance in the quality of the goods from those ordered, and an offer to return them, without filing a counterclaim.

2. SAME—BRINGING GOODS INTO COURT.

One sued on an order for goods to be delivered at his office may set up variance in quality, and an offer to return them, without bringing the goods into court and making a tender to plaintiff.

3. SAME—EVIDENCE—SUFFICIENCY.

In an action to recover the purchase price of goods ordered, evidence examined, and held to make a substantial showing of an offer to return the goods on the ground of misrepresentation.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by the Avil Publishing Company against George A. Bradford. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Webster Gordon, for appellant. Charles J. Walker, for respondent.

BROADDUS, P. J.

This suit was commenced in a justice's court, where defendant recovered. Plaintiff appealed to the circuit court, where on trial anew he recovered, and the defendant appealed to this court.

On December 15, 1902, the defendant in writing gave an order to the Avil Printing Company, of which the plaintiff is the successor, for one set of "The Ridpath Library of Universal Literature," consisting of 25 volumes, for which he agreed to pay $39.60, in payments of $5 each, to wit, $5 down and $5 in each month thereafter until the whole purchase price should be paid. He paid the first $5, but upon receipt of the books they did not prove satisfactory to him, and he refused to make any other payments. The suit is to recover the balance claimed by plaintiff as due on said order. The order provides that the books were to be bound in "extra embossed linen." The defendant's evidence tended to prove that the books were not found in "extra embossed linen," but in material of an inferior kind. Defendant testified that upon receipt of the books he examined them, and found that they were not the books he bought, whereupon he wrote plaintiff that their agent had misrepresented things, or that they had sent the wrong books, and that he would not take them. Upon motion of plaintiff the court struck out all of defendant's evidence, and gave judgment in its favor for $34.60.

We gather from the briefs and argument of counsel that the action of the court was predicated upon the theory that, as defendant had failed to file a counterclaim, his evidence was inadmissible, and consequently he had no defense to the action. If the books did not comply with the terms of the written and accepted order of defendant, he was not bound to keep them after having received and inspected them. Fairbanks, Morse & Co. v. Mining Co., 105 Mo. App. 644, 80 S. W. 13; Schwab & Co. v. Frieze, 107 Mo. App. 553, 81 S. W. 1174; Little Rock Grain Co. v. Brubaker, 89 Mo. App. 10; Branson v. Turner, 77 Mo. 489. There is no doubt but what goods received on an order upon the dealer are subject to inspection by the purchaser. He may retain the goods...