Bayer Steam Soot Blower Co. v. City of Milan
| Decision Date | 03 December 1917 |
| Docket Number | No. 12614.,12614. |
| Citation | 199 S.W. 712 |
| Parties | BAYER STEAM SOOT BLOWER CO. v. CITY OF MILAN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.
"Not to be officially published."
Action by the Bayer Steam Soot Blower Company against the City of Milan. Judgment for defendant, and plaintiff appeals. Reversed and remanded. On rehearing. Motion for rehearing overruled.
Wattenbarger & Payne, of Milan, for appellant. D. M. Wilson, of Milan, for respondent.
On April 27, 1915, C. W. Reeves and C. P. Sorrell, the purchasing committee of the board of aldermen of defendant city, by contract in writing, bought of plaintiff two soot blowers, agreeing to try the same for 60 days, and, if not satisfactory, to return them within 15 days after the expiration of the trial period. The blowers arrived on May 22, 1915. Defendant refused to accept the blowers, and plaintiff brings suit for $90, the purchasing price. The defense below was that the contract was obtained through fraud, and upon a trial before a jury there was a verdict and judgment for defendant.
To sustain the allegation of fraud, defendant introduced evidence tending to prove that George Mann was the city engineer in charge of the city's electric light plant; that plaintiff's solicitor, Miller, went to Mr. Mann and tried to sell him these blowers, but Mr. Mann referred him to Messrs. Reeves and Sorrell, the purchasing committee of the board of aldermen. Mr. Miller then went to Messrs. Reeves and Sorrell and offered to sell the soot blowers; but these gentlemen told Mr. Miller that Mr. Mann was the city's engineer, and that they knew nothing about the matter, and that they would not buy them, except on Mr. Mann's recommendation. Mr. Miller told Messrs. Reeves and Sorrell then that he had talked to Mr. Mann, and that Mr. Mann had recommended the purchase, whereupon Messrs. Reeves and Sorrell signed the contract. Mr. Miller then took the contract to Mr. Mann, and asked Mr. Mann to sign it, and told him that Messrs. Reeves and Sorrell had signed it, and thereupon Mr. Mann signed the contract, although he said he did not want the blowers. Neither Reeves nor Sorrell made any investigation whatever to find out if Mann really wanted the blowers.
As before stated, the goods arrived on May 22, 1915. Mr. Mann looked into the boxes, saw what they were, and testified that they were of no use to him, and so he nailed them up and said nothing about the matter to any one until along about the first week of July, when he told Messrs. Reeves and Sorrell that the goods had arrived, and that he did not want them, and upbraided the latter for buying them. At the next meeting of the board of aldermen, held after this conversation, or on July 14, 1915, the board undertook to take advantage of its option to return the blowers on condition that the city had tried the same, but, of course, there had been no trial. No rescission of the contract on the ground of fraud was ever attempted by defendant.
On September 30, 1915, defendant city of Milan wrote the following letter to plaintiff:
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