Bixler v. Wagster

• Decision Date: 04 December 1923
• Docket Number: No. 18036.,18036.
• Parties: BIXLER v. WAGSTER.
• Court: Missouri Court of Appeals

256 S.W. 520

BIXLER v. WAGSTER.

No. 18036.

St. Louis Court of Appeals, Missouri.

December 4, 1923.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelley, Judge.

"Not to be officially published."

Action by Miles Bixler, doing business under the trade-name of the Continental Jewelry Company, against N. J. Wagster. Judgment for plaintiff. From an order granting a new trial and setting the verdict aside, plaintiff appeals. Affirmed.

Fred L. Byrkit, of Kennett, for appellant. McKay & Jones, of Kennett, for respondent.

BRUERE, C.

This is a suit for the recovery of the purchase price of a lot of jewelry sold and delivered by plaintiff to defendant. A verdict and judgment was rendered in favor of plaintiff, but the court sustained defendant's motion for a new trial, and set the verdict aside. From the order setting aside the verdict and granting defendant a new trial, the plaintiff has appealed.

The answer contains a general denial, and in addition avers that the defendant was induced to purchase the goods by reason of false and fraudulent representations as to their quality, made by plaintiff's agent in selling them, and that upon the receipt of the goods and the discovery of the fraud the defendant rescinded the contract of purchase and immediately returned the goods to the plaintiff.

The false and fraudulent representations set up in the petition are that—

"Said goods and merchandise were fraudulently represented to him to be of a certain kind and quality, to wit, as good as Solden jewelry, and of good material and not of a cheap grade or inferior quality."

Material facts disclosed by the evidence are as follows: Plaintiff was a dealer in jewelry, doing business in Cleveland, Ohio, under the trade-name of the Continental Jewelry Company. The defendant on November 27, 1918, was conducting a country store in Dunklin county, Mo. On said date plaintiff's traveling salesman came to defendant's store and obtained a written order for the goods in controversy. This order contained a list of the goods purchased, the prices of which amounted to $192. The stipulations and conditions of the order pertinent to the question raised here are as follows:

"Delivery to transportation company is delivery to purchaser, who pays all charges. Jewelry by express; showcase by freight. Salesman's authority is limited to taking orders on this form and no change or addition is binding unless in writing on the original order, accepted by us at Cleveland, Ohio. Order No. 175. P. O., Kennett; County, Dunklin; State, Mo. Express Station, Senath. Freight Station ___. Date 11-27-1918. Salesman, S. C. Lewis. The Continental Jewelry Co., Wholesale Only, 1914-1920 Euclid Ave., Cleveland, Ohio. Gentlemen: Please ship these goods which we purchase on the above terms and conditions. We have read this order and find same complete and satisfactory. Purchaser's Signature: N. J. Wagster."

In due time the goods described in the written order were shipped by the plaintiff to the defendant. On the day they were received the defendant examined and returned them, by express, to the plaintiff. The plaintiff ordered them returned to the defendant, and the defendant refused to receive them from the express company. The plaintiff, in order to prevent a sale of the jewelry for express charges by the express company, finally took possession of the goods, and since then has retained them subject to defendant's order.

The testimony of the defendant tended to support the defense that false and fraudulent representations as to the quality of the goods sold, were made by plaintiff's agent to defendant, during the negotiations of the sale, and that said representations resulted in the order being given. This testimony was not controverted at the trial.

In setting aside the verdict and awarding a new trial the court did not assign any reason therefor. This brings each of the assignments of error made by defendant in his motion for a new trial to this' court for review. In deciding the issue raised here we need to consider only the assignment "of error contained in the said motion, which relates to the giving of plaintiff's instruction No. 1. Said instruction reads:

"The court instructs the jury that, if you find and believe from the evidence in this case that the jewelry shipped to the defendant by the plaintiff consisted of collar buttons, link buttons, lockets, charms, bracelets, men's charms, men's fobs, etc., and you further find that such jewelry was of rolled gold, plate, filled gold, and solid gold, if you further find and believe that the jewelry was shipped to the defendant at Senath, Mo., and was reasonably worth at wholesale price the sum of $192, if you further believe that the defendant refused to receive the jewelry, your verdict should be for the plaintiff, unless you find that plaintiff did not furnish a display case as instructed in instruction No. 2...