Elgin Jewelry Co. v. Withaup & Co.

• Decision Date: 22 May 1906
• Citation: 94 S.W. 572,118 Mo.App. 126
• Parties: ELGIN JEWELRY COMPANY, Appellant, v. WITHAUP & COMPANY, Respondent
• Court: Missouri Court of Appeals

94 S.W. 572

118 Mo.App. 126

ELGIN JEWELRY COMPANY, Appellant, v. WITHAUP & COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

May 22, 1906

Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.

AFFIRMED.

STATEMENT.--This is an action for the purchase price of merchandise sold and delivered by plaintiffs to defendants. The Elgin Jewelry Company is a partnership, of which the members are T. C Loveland and J. L. Records. The principal places of business of that firm are at Iowa City, Iowa, and Elgin, Illinois. The defendants, F. L. and E. E. Withaup, compose a firm engaged in the drug and jewelry business in the city of Willow Springs, Missouri. A written order for the goods in controversy was given to a traveling salesman of plaintiffs in the spring of 1903. The goods were various articles of jewelry, such as cuff and collar buttons, scarf pins, shirt studs, ladies' blouse sets, chains, rings and hatpins. We will copy the order, except the list of goods:

"On condition that the purchaser complies with all the terms of this order at the time and in the manner stated hereon and promptly meets any obligations entered into with the Elgin Jewelry Company, uses ordinary diligence in the sale of these goods, will sell nothing at a less profit than is usually charged on jewelry and will make out and send to the Elgin Jewelry Company by registered mail at the end of every sixty days, an itemized report showing the goods on hand and the goods sold, the Elgin Jewelry Company guarantees that gross profits from the sale of the goods purchased herein shall average 33 1-3 per cent per year as above; provided the Elgin Jewelry Company will either buy all goods remaining on hands unsold and pay the original invoice price for sale or will pay by Chicago or New York draft a sufficient amount to make up the guarantee.

"Terms of Payment.--One-fourth of the amount due in three months one-fourth in six months and two-fourths in twelve months without interest. A discount of six per cent will be made for cash in ten days. The terms of credit above provided will only be allowed if acceptances payable to our order are given within ten days from date of invoice; otherwise terms are cash fifteen days."

(Here follows list of the goods purchased, the prices of which amounted to $ 197.)

WARRANTY.

"Any jewelry in this assortment failing to wear satisfactorily will be replaced by new articles free of charge if returned to us within five years."

EXCHANGE PRIVILEGES.

"Any article not selling readily can be exchanged for different patterns or other articles in this assortment any time within one year from date of invoice and after compliance with the terms of settlement.

"The Elgin Jewelry Company is hereby authorized to issue a draft on the purchaser herein for fifty cents worth of jewelry to each one hundred persons whose name and address he may furnish them; said draft to be redeemed by him with goods furnished free for advertising proposed in the above order.

"The purchaser agrees to notify the Elgin Jewelry Company by registered mail within two days from receipt of said jewelry of every shortage or variance from the order, and a failure to so notify them shall be an estoppel from such claims.

"Elgin Jewelry Company,

"Elgin Illinois.

Date ...., 190..

"Gentlemen:

On our approval of this order please deliver to us at your earliest convenience f. o. b. transportation companies, either at distributing point or at factory point, the above assortment of goods on terms and conditions herein set forth and no others (all of which I have read and found complete and satisfactory).

"P. O. Willow Springs, County, Howell, State, Missouri; name of customer, Withaup & Company; freight station same; salesman L. B. Jackson.

"Round show case free; old goods to be exchanged for additional goods not to exceed $ 25; all the advertising; two catalogues.

"(Signed) WITHAUP & CO."

The petition was in the usual form for the price of merchandise sold and delivered. In defense of the action the answer set up that the order was given by defendants at the solicitation of a salesman of plaintiffs; that defendants had not seen the jewelry, but relied wholly on representations the salesman made as to its grade, quality and value; that defendants told the salesman they did not desire to purchase any jewelry of low grade, but only plated jewelry of high grade; that no samples were exhibited, but in order to induce defendants to purchase, the salesman represented that the Elgin Jewelry Company was the jewelry department of the Elgin Watch Company of Elgin, Illinois, and that the jewelry he offered for sale was of a high grade, and in material, style, workmanship and quality, equal to any that could be obtained in the market for the prices charged; that defendants, relying on the truth of said representations, which were known by the salesman to be false, gave the order for the merchandise; that on receipt of the goods they were found to be a cheap and inferior grade of jewelry and priced to defendants at much more than similar jewelry could have been purchased for elsewhere; that the Elgin Jewelry Company was not connected with the Elgin Watch Company in any way; that on discovering the facts regarding the false representations as to the character of the goods defendants immediately notified plaintiffs by mail and offered to return the goods or hold them subject to plaintiffs' order; that defendants still hold them subject to plaintiffs' order and are willing and ready to return them when requested; that defendants have paid out freight charges on the goods to the amount of $ 5.65, for which sum they pray judgment. The reply was a general denial. The testimony for defendants tended to support the averment that they were induced to purchase the jewelry by false representations made by plaintiffs' salesman regarding the grade and quality of the goods, and that, when delivered, the articles were found to fall materially short of those representations. On the contrary, the testimony for plaintiffs is that the goods were first-class and of high quality. As to these matters issues of fact were presented for the jury's decision and the issues were submitted by the instructions the court gave. Defendants obtained a...