Beyer v. Conroys, Inc.
| Decision Date | 02 December 1930 |
| Docket Number | No. 21227.,21227. |
| Citation | 32 S.W.2d 763 |
| Parties | BEYER v. CONROYS, Inc. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.
"Not to be officially published."
Suit by Bernice Beyer against Conroys, Inc. Judgment for plaintiff, and defendant appeals.
Affirmed.
Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.
Albert Thomas Sauer, of St. Louis, for respondent.
This is a suit in equity filed in August, 1925. Plaintiff's petition is bottomed upon fraud in the sale of a piano, and the relief sought therein is rescission of the transaction.
Plaintiff's petition alleged, in substance, that on September 5, 1924, defendant sold to plaintiff a piano, which defendant represented was a genuine Stratford piano made by the Foster-Armstrong division of the American Piano Company at East Rochester, N. Y., when in truth and fact said piano was made and manufactured by the H. C. Bay Piano Company at Bluffton, Ind., and that it was inferior in tone, material, quality, and price to the instrument first mentioned, and that those representations were false and fraudulent, and were so known by defendant, and that they were relied upon by the plaintiff; that plaintiff was allowed $100 on account of her used piano, which was traded in; that she paid $85 down, and obligated herself on a note in the sum of $400 for the balance of the purchase price; that the note was payable in installments of $25 per month, with interest, and that eight payments were made before the fraud was discovered; and that thereupon, in June, 1925, upon discovery of the fraudulent misrepresentations, plaintiff tendered to defendant the purported Stratford piano, and demanded a return of the note for $400, the piano which she had given the defendant in exchange, and the $85 first payment and the eight monthly installments of $25, each with interest. The prayer of the petition was for a rescission and a return of the property.
The second amended answer and counterclaim upon which the case was tried was filed January 13, 1928, and contained, first, a general denial and then pleaded an estoppel, setting out the plaintiff had, in June, 1925, upon her statement that the piano she bought had been misrepresented, demanded a reduction in the price of the piano, and that the defendant at that time had offered to return all the property and money it had received, to take back the piano it had sold and rescind the entire transaction; that before the suit was filed the defendant had again offered to rescind the contract and restore the property; that, after suit was filed, rescission was again offered, but that plaintiff desired to keep the piano she had purchased and to pay a smaller amount than she had agreed, and the answer further set out that all of the facts were known to plaintiff at the time of the purchase, and that she had kept and retained the piano with that knowledge, and that she was therefore estopped and precluded from maintaining the action. In its counterclaim the defendant pleaded the note, and asked for the balance due.
The reply to the second amended answer of the defendant and the answer to the counterclaim of the defendant were both in the nature of a general denial.
The court found in favor of the plaintiff, and decreed that the plaintiff have and recover of defendant the total sum of $359.02, that the defendant surrender to plaintiff the promissory note executed and delivered to it by the plaintiff in the sum of $400, that note being for the balance of the purchase price, and that defendant return to plaintiff the piano it received from her, or that it pay to her in lieu thereof the sum of $100, being the sum allowed her as a credit for said piano, and that thereupon the defendant be entitled to receive from plaintiff the piano which defendant had sold to her. The court further found against defendant on its counterclaim and decreed the costs against the defendant.
At the trial of the case, after plaintiff's first witness had been placed upon the stand, the defendant by its counsel offered to rescind the transaction and restore to plaintiff the things prayed for in her petition, which offer plaintiff's counsel expressed himself as willing to accept. A controversy, however, then arose as to which of the parties should...
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