Columbia Weighing Mach. Co. v. Fitzgibbons

• Decision Date: 08 December 1931
• Docket Number: No. 21219.,21219.
• Citation: 43 S.W.2d 897
• Parties: COLUMBIA WEIGHING MACH. CO. v. FITZGIBBONS.
• Court: Missouri Court of Appeals

43 S.W.2d 897

COLUMBIA WEIGHING MACH. CO. v. FITZGIBBONS.

No. 21219.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Action by the Columbia Weighing Machine Company against H. J. Fitzgibbons. From the judgment rendered, the plaintiff appeals.

Reversed and cause remanded.

Sam M. McKay, of De Soto, for appellant.

E. C. Edgar, of De Soto, for respondent.

BENNICK, C.

This is an action upon a contract for the sale of a penny-in-the-slot weighing machine. Plaintiff is a corporation engaged in the manufacture and sale of weighing machines, while defendant, who is a druggist, owns and operates the Opera House Drug Store, in De Soto, Mo.

The following is the contract which was entered into between the parties, and upon which this action is founded:

                           "Purchase Contract
                "CR.                    Date 11-3-1925
                "Price $165.00         Payable Monthly
                "The Columbia Weighing Machine Co., Inc
                   "9 West 61st Street, New York, U. S. A
                

"You may ship us one Columbia Mirror Weighing Machine, freight paid. It is sold to us with the understanding that we may return it to you at any time within thirty days from date of arrival of the machine, instead of paying the purchase price. Return shipment to be made to above address, by freight only; freight charges collect. Should we not ship it back to you within thirty days from date of its arrival, we will pay you the purchase price thereof, namely, one hundred and sixty-five dollars, as follows: Ten dollars per month, until paid, first payment to be made sixty days from date of arrival of the machine.

"Should we be two monthly payments in arrears at any time, the entire unpaid balance of the purchase price shall then become due, together with attorney fees amounting to twenty per cent of the sum in default, if collection is made by law. It is understood you are to supply us with any mechanical parts required for the machine for a period of five years, without charge. Whenever we may want a part, we are to inform you by registered mail.

                  "Firm name: Opera House Drug Store
                  "Signed by: H. J. Fitzgibbons.
                  "Town and State: De Soto, Missouri.
                

"Six per cent may be deducted if the entire amount is paid within sixty days from date of arrival. No verbal agreement will be recognized. All orders are subject to acceptance by the company, at its office in New York City."

The execution of the contract was admitted, and the evidence showed that the machine was delivered to defendant on January 5, 1926. Shortly thereafter, defendant discovered what he thought to be a defect therein, and on January 31, 1926, he wrote to plaintiff at its New York office, advising it that the machine had not proved satisfactory, and requesting that it have its representative call and repair the machine, or else he would return it. Defendant received no response to his letter, but nevertheless he kept the machine in operation until May 29, 1926, when he delivered it to the railroad company for return shipment to plaintiff.

On October 19, 1926, the present action was instituted; the petition alleging the execution of the contract, the delivery of the weighing machine to defendant, and its retention by him until May 29, 1926. Judgment was prayed in the sum of $209.88, aggregating the purchase price of the machine, attorney's fees, and interest.

In his answer, defendant admitted the purchase of the machine from plaintiff at the price and sum of $165, but sought to avoid his liability for the payment of the purchase price by a plea of want of consideration, based upon the ground that the machine was worthless for any purpose.

Coupled with the answer was a counterclaim, in which defendant alleged that within the first thirty days after he had received the machine, and before he himself had discovered that it was incorrect and defective, a number of his best customers used it, and finding that it weighed incorrectly, they concluded that he was using it to cheat and defraud them, and thereupon became angry with him, and immediately quit patronizing him, all to his damage in the sum of $1,000, for which he prayed judgment.

The reply was in the conventional form.

On January 23, 1929, the cause came on for trial to a jury, resulting in the return of the following verdict: "We, the jury in the above entitled cause, find the issues for plaintiff and against the defendant in the sum of $1.00, and we further find the issues for plaintiff and against the defendant in the sum of ______ dollars as attorney fee and we further find for the plaintiff and against the defendant in the sum of twelve cents as interest."

Dissatisfied with the verdict, and the judgment which was rendered in accordance therewith, plaintiff filed its motion for a new trial; and following the entry of the court's order overruling the same, it has duly perfected this appeal.

At the time for the submission of the case to the jury, plaintiff requested instructions numbered 1 and 2, which the court refused to give. These instructions were designed to tell the jury in each instance that if defendant executed the...