Boeker v. Crescent Belting & Packing Co.

• Decision Date: 28 April 1903
• Citation: 74 S.W. 385,101 Mo. App. 429
• Parties: BOEKER v. CRESCENT BELTING & PACKING CO.
• Court: Missouri Court of Appeals

74 S.W. 385

101 Mo. App. 429.

BOEKER v. CRESCENT BELTING & PACKING CO.

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

PLEADINGS—AMENDED COMPLAINT — DEPARTURE —WAIVER OF OBJECTION—SALES—RESCISSION — WHAT CONSTITUTES — PLACING VENDOR IN STATU QUO.

1. Where substantially the same evidence will be required to support an amended petition as an original complaint, and the same judgment is to be rendered on one as on the other, there is no departure.

2. Where a defendant proceeds to trial in justice's court on an amended petition, he cannot urge on appeal in the circuit court that it departed from the original complaint.

3. After having received a consignment of rubber tires sold by sample, the purchaser used about 100 pieces, when, finding them defective, he removed those used, procured the return of those shipped, placed all in the original packages, and notified the seller's agent. The seller sent a representative, who admitted that the goods were unfit for use, and directed the purchaser to pack and hold them. Held to constitute a sufficient rescission.

4. It sufficiently appeared that the purchaser could place the seller in statu quo, so as to warrant rescission.

Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Action by Anton Boeker, doing business under the name of the American Rattan Works, against the Crescent Belting & Packing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Respondent was engaged, under the name of the American Rattan Works, in the business of manufacturing children's carts and baby carriages in the city of St. Louis. The appellant, a corporation in the state of New Jersey, manufactured rubber goods, including material for tires for such vehicles. Appellant's agent, W. R. Colcord, requested respondent to permit him to submit samples of rubber times manufactured by it, and its prices therefor; and in March, 1900, such samples were exhibited to respondent, and an order given for a trial lot, which was delivered in April thereafter, and, proving satisfactory, an order was given appellant, through its agent, Colcord, for the goods involved in this controversy. These goods arrived in May, in six consignments, and were stored, without breaking bulk, immediately, as upon their arrival respondent had open cases of similar goods, which he wished to consume before using appellant's consignments. On June 5th respondent sent appellant, in payment, a negotiable note, at 30 days, to order of appellant, for $574.38. Thereafter, when the goods received were opened, and their use in manufacture had begun, after about 100 pieces, of the value of $15, had been installed on wheels, the rubber was found defective, poor in quality, and inferior to the sample trial lot. Thereupon these tires were removed, those shipped returned, and all were placed in the packages in which they had been received. Upon the discovery of the quality of the tires, Colcord, through whom they had been purchased, was notified by...