Block v. Martin

• Decision Date: 28 June 1910
• Parties: BLOCK et al. v. MARTIN.
• Court: Missouri Court of Appeals

129 S.W. 715

150 Mo. App. 82

BLOCK et al. v. MARTIN.

St. Louis Court of Appeals. Missouri.

June 28, 1910.

SALES (§ 128)—CONTRACT—RESCISSION.

Where the buyer of goods made no complaint to the seller of their quality or of late delivery, and turned them over to another party, for sale in another town, without notice to the seller, there was no rescission.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Action by I. Block and another against Mrs. John Martin. Judgment for plaintiffs, and defendant appeals. Affirmed.

Jas. R. Young, for appellant. Jas. A. Finch, for respondents.

GOODE, J.

Action for merchandise sold and delivered of the value of $72.27. The case was commenced before a justice of the peace by filing an account with this caption: "I. and A. Block, trading as the Ohio Pottery and Glass Company, 628 Superior Street, Cleveland, Ohio. Sold to Mrs. John Martin, formerly Mrs. H. C. Vasterling, trading as the Edna Millinery and Notion Co." The justice issued a summons wherein plaintiffs were described as the Ohio Pottery & Glass Company without giving the names of the members of the partnership. The account as filed was verified by the affidavit of E. F. Stitzel, bookkeeper for plaintiffs, to the effect that the Ohio Pottery & Glass Company was a partnership composed of I. and A. Block. In due course the cause proceeded to the circuit court, was there tried before a jury, and the sale of the goods established by the depositions of witnesses and the testimony of defendant. She said, however, they were purchased by her in January to be delivered immediately so she could have them to use during the dull season, but were not delivered until March 20th or April 3d, when her spring goods were in and she had no room for those in suit. Her store was at a place called Illmo, and she testified that, instead of opening the goods, she shipped them to her father, who did business in Charleston, Mo., for him to sell if he could and account to plaintiffs for the purchase price; also, for the purpose of having him see the traveling salesman of plaintiffs who had sold the goods to defendant, and make some settlement with him. Though defendant said she did not open the goods, she testified they were of inferior quality, and we suppose she partly inspected them. She did not ship them to her father until several days after they were received. The father testified he saw part of the goods, though they were not opened by him, and found them of...