Brandtjen & Kluge v. Burd & Fletcher Co.

• Decision Date: 11 February 1946
• Parties: Brandtjen & Kluge, Inc., v. Burd & Fletcher Co., a Corporation
• Court: Kansas Court of Appeals

192 S.W.2d 651

239 Mo.App. 268

Brandtjen & Kluge, Inc., v. Burd & Fletcher Co., a Corporation

Court of Appeals of Missouri, Kansas City

February 11, 1946

Appeal from Circuit Court of Jackson County; Hon. Emory H. Wright Judge.

Affirmed.

James E. Nugent, R. L. Hecker and Morrison, Nugent Berger, Hecker & Buck, for appellant.

(1) The suit was in equity and this court must consider the evidence and determine the issues de novo. Presbyterian Orphanage v. Fitterling, 342 Mo. 299, 114 S.W.2d 1004. (2) Defendant did not waive its right to rescind. Brandtjen & Kluge v. Lucas, 153 Kan. 138, 109 P.2d 197; J. L. Owens Co. v. Leland Farmers Elevator Co., 198 Iowa 271, 198 N.W. 19; Faust v. Koers, 111 Mo.App. 560, 86 S.W. 278; 55 C. J. 279, Sales, Sec. 260(c); 55 C. J. 296, Sales, Sec. 281; 55 C. J. 275, Sales, Sec. 254; Williston on Sales (2 Ed.), Sec. 610; Beuret v Stahl, 76 Ind.App. 131, 129 N.E. 407; Bell v. Anderson, 74 Wis. 638, 43 N.W. 666.

Granoff & Meyerhardt and Maurice Weinberger for respondent.

(1) Plaintiff had the burden of proving the grounds for rescission and failed to do so. Jones v. Werthan Bag Co. (Mo.), 254 S.W. 4, l. c. 14. (2) The terms of the contract cannot be varied or enlarged by extrinsic writings executed prior thereto. Brandtjen & Kluge v. Hunter, 235 Mo.App. 909, 145 S.W.2d 1009, l. c. 1017; Little v. Widener, 226 Mo.App. 525, 32 S.W.2d 116, l. c. 117; 32 C. J. S., Evidence, Sec. 959, p. 896. (3) If appellant had the right to rescind the sales contract, such right was waived by appellant's continued use of the new press, after a tender of return. Aeolian Co. of Missouri v. Boyd (Mo. App.), 65 S.W.2d 111, l. c. 114; McCartney v. Taylor Aircraft Co. (Mo. App.), 140 S.W.2d 95; Sturgis v. Whisler, 145 Mo.App. 148, 130 S.W. 111, l. c. 113; Faust v. Koers, 111 Mo.App. 560, 86 S.W. 278, l. c. 279; St. Louis Carbonating & Manufacturing Co. v. Loevenhart (Mo. App.), 190 S.W. 627, l. c. 628; Riverside Fibre & Paper Co. v. Benedict Paper Co. (Mo. App.), 201 S.W. 584, l. c. 587; Rock Island Implement Co. v. Wally (Mo. App.), 268 S.W. 904, l. c. 912; 46 Am. Jur., Sales, Sec. 765, p. 896.

OPINION

Dew, J.

Respondent brought suit in equity August 27, 1942, for balance of purchase price of a printing press sold on conditional contract of sale to appellant, and prayed that the judgment therefor be adjudged a lien on the press, and asked for general relief. Appellant defended on the theory of its rescission of the contract of sale based on alleged breach of contract and warranty, and pleaded a counterclaim for damages for respondent's failure to return to appellant an old press taken in trade, and asked for general relief. Judgment was for respondent on its petition for $ 1764.37, inclusive of interest, and for a lien on the printing press sold under the contract, with provisions for foreclosure thereof, and for deficiency judgment, and the court further found for respondent on appellant's counterclaim.

The respondent and appellant were, respectively, plaintiff and defendant in the cause, and will be so referred to herein.

On March 12, 1942, plaintiff and defendant entered into a written contract by which plaintiff agreed to sell and defendant agreed to buy a 12x18 New Kluge Automatic Platen Press, with certain equipment listed on the back of said contract; the press was to be equipped with a die-cut envelope feeder instead of the regular feeder; the price of the machine and equipment was to be $ 2157.30, including sales tax; an old press of defendant's was to be taken in trade at the value of $ 625 to apply on said price, and the balance, $ 1532.30, was to be paid to plaintiff in cash in twenty days after the new machine was installed by plaintiff in defendant's plant in Kansas City; plaintiff to furnish a competent man to install the press at plaintiff's expense; defendant to make the necessary electrical connections at defendant's expense, and to furnish help to erect the Kluge press and equipment; the title, ownership and possession of the Kluge press and equipment to remain in plaintiff until the purchase price was paid in full. It was agreed that the "guarantees printed on the reverse side of the contract are hereby made a part thereof and constitute all the binding warranties", and that "no agreements or representations expressed or implied not specified in the warranties on the reverse side hereof respecting this contract or the goods hereby ordered have been made by first party (seller) unless contained herein, and this contract constitutes the entire agreement of the parties".

On the reverse side of the contract there appears, among other provisions, the following:

"Kluge Automatic Press Guarantee.

"We guarantee that the Kluge Automatic Press manufactured by us will handle any flat stock from tissue paper to eight-ply cardboard as well as envelopes (made-up or die-cut) with accurate register, provided that stock is not electrified or in otherwise bad condition. . . . 12x18 Kluge Automatic Press -- Max. Operating Speed 3000 per hour -- Sheet Size Range -- Inches 3x4 to 14x18 1/2".

Under the printed list of equipment it is again noted in handwriting: "This press is to have the Kluge die-cut envelope feeder in place of the regular feeder". The following also appears at the bottom of the reverse side of the contract:

"BRANDTJEN & KLUGE, INC., WARRANTY

"We warrant the goods of our manufacture for one year, this warranty being limited to the furnishing at our factory of such parts as shall, under normal use and service, appear to us to have been defective in material and workmanship.

"This warranty is limited to the shipment to the purchaser without charge, except for transportation, of the part or parts intended to replace the part or parts claimed to have been defective and which upon their return to us for inspection we shall have determined were defective, and provided the transportation charges for the parts so returned have been prepaid. We make no warranty whatever in respect to hoses, counters, electric equipment or any equipment not of our manufacture.

"The condition of this warranty is such that if the goods to which it applies are altered or repaired outside of our factory, our liability under this warranty shall cease.

"The purchaser understands and agrees that no warranty of the goods of our manufacture is made or authorized to be made by the Company other than herein above set forth".

On or about April 20, 1942, the Kluge machine was erected in defendant's plant by plaintiff, and the old press delivered to and removed by the plaintiff in due course.

Defendant's amended answer, filed November 29, 1943, denies that the press and equipment were as contracted for and as warranted therein; denies that the same were properly installed by plaintiff, and avers that the erector furnished by plaintiff was incompetent, and that there was great spoilage and little production on the new press, and that the same was unsatisfactory; that defendant had at various times demanded of the plaintiff that it either makes the new press operate properly or return to the defendant the old press and equipment, and to reimburse defendant for loss of production and other damages sustained; that although the new press had at all times been at the disposition of the plaintiff, the plaintiff had failed to return the old press or reimburse defendant for failure so to do, all to the defendant's damages in the sum of $ 5000; that the said damages consisted of spoilage of material, loss of labor and production, and the plaintiff had not done equity in the premises. The prayer of the answer was that the plaintiff take nothing by the petition, but be required to return and restore to defendant the old press and equipment wrongfully withheld by plaintiff, and to reimburse defendant for the damages sustained by defendant "as a result thereof", declaring the rights of the defendant, and for further relief.

The reply filed September 1, 1944, denied that the contract guaranteed "that said press would handle any flat stock from tissue paper to eight-ply cardboard, as well as envelopes (made-up or die-cut) with accurate register, provided that the stock was not electrified or otherwise in bad condition, and that on sheet sizes ranging from 3x4 to 14x18 1/2 the press had an operating speed up to a maximum of 3000 (impressions) per hour".

The reply further reasserted the "warranty" in the contract as to parts, hereinabove quoted, and stated that no such parts has been returned to plaintiff by defendant, and stated further that defendant had exercised control over and had use said Kluge press for defendant's own purposes since April 22, 1942, to date.

The trial of the cause was on September 25, 1944. In the judgment rendered the court found the issues on plaintiff's petition in favor of plaintiff and against defendant, and found the issues on defendant's counterclaim in favor of plaintiff and against defendant. It further found that there was due and owing to the plaintiff from the defendant on plaintiff's petition the sum of $ 1532.30, together with interest thereon from June 1, 1942, in the sum of $ 232.07, or the total sum of $ 1764.37; that plaintiff was entitled to a lien for the last mentioned sum upon said Kluge press, and entitled to have the said lien foreclosed. It was further decreed that the plaintiff have judgment against defendant on said petition for the sum of $ 1764.37, together with costs, to be levied first out of said Kluge press, and if said property be insufficient to satisfy said debt and costs, the remainder to be levied out of other property of the defendant, and for execution. The court further adjudged that defendant take nothing by its counterclaim.

Defendant's sole assignment of...