Ford v. Dyer
| Decision Date | 21 February 1899 |
| Citation | 49 S.W. 1091 |
| Parties | FORD v. DYER. |
| Court | Missouri Supreme Court |
1. A contract with the patentee of a gas regulator provided that "the party of the first part [the patentee] does hereby bargain and sell, assign, grant, and convey, to the party of the second part, * * * the exclusive right to sell, rent, and use the said regulator," in certain territory. A condition subsequent gave the assignee a year from the date of the contract to cancel it, by a stipulated notice, and provided that if, at or before one year, the assignee signified his election to continue the business, the agreements of the contract were to become permanent. Held, that the first provision at once vested in the assignee the absolute right to the territory, subject, under the other provisions, to the assignee's rights of rescission within a year.
2. Under a contract with the patentee of a certain machine, he was to furnish one, to whom he had assigned the exclusive right in certain territory, what machines he might require at a certain price; but they were not to be paid for until the patentee executed a refunding bond, in case of the other party's election to rescind the contract within a time fixed thereby. Held, that title to the machines vested in the buyer on delivery.
3. Where one bought territory and machines from a patentee under a contract giving him the right to rescind on giving stipulated notice, and the title to territory passed on its execution, and title to machinery on its delivery, the buyer, in the absence of fraud, could only rescind in the manner and within the time prescribed.
4. Under the right to rescind a contract by letter giving notice thereof, to be effective, the expressed intention to rescind must be clear and unequivocal.
5. There is no error in refusing instructions, leaving to the jury the interpretation of written instruments.
6. There is no error in refusing an instruction predicated on the mistaken assumption that a contract on which the action was brought was rescinded.
7. In an action on a contract, where there is no evidence to show cancellation, on which defendant relies, there is no error in a peremptory instruction for plaintiff.
Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.
Action by Archibald Ford against Beverly A. Dyer. There was an instructed verdict for plaintiff, and defendant moved for a new trial and in arrest of judgment. The motions were overruled, and he appeals. Affirmed.
John W. Kerr and Carter & Sager, for appellant. Geo. E. Smith and Johnson, Houts & Marlatt, for respondent.
This is an action for damages for the breach of a written contract entered into between plaintiff and defendant on the 20th day of November, 1894. Plaintiff, having the right and privilege to dispose of state or territorial rights to make, vend, and deal in a certain kind of gas regulator and gas governor, under patents Nos. 367,801 and 498,543, by virtue of certain letters patent issued to him out of the patent office of the United States, entered into a written contract with defendant, substantially as follows:
The petition is in two counts, — the first, in assumpsit, for the price of the machines and the territory sold; the second, in trover, for the conversion of the machines, fittings, and quicksilver. The first count, in substance, alleged the execution of the written contract, the sale of the territory specified, the furnishing by plaintiff to defendant, on his order, between November 20, 1894, and September, 1895, of a large number of the machines in question, giving the date, number, size, and price, amounting at the price fixed by the contract to the sum of $2,101.25, no part of which had been paid; pleaded performance of the conditions of the contract by plaintiff, except the giving of the refunding bond, and excused that omission on the ground that defendant had paid no money to plaintiff; pleaded the condition by which defendant had the right to rescind by giving notice within the year, and his failure to take advantage thereof; and asked judgment for the contract price of the machines furnished, $2,101.25, and the further sum of $2,500 stipulated for in said contract, to wit, damages in the aggregate sum of $4,601.25. The second count, in substance, pleaded the contract, the account of machines furnished, of the number and price as in the first, and that nothing had been paid, and, although the defendant claimed to have rescinded said contract within the year, he had nevertheless failed and refused on demand to return said machines, with the fittings and quicksilver, as provided by said contract, and asked judgment as for a conversion of machines of the value of $2,101.25, fittings of the value...
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...National Life Investment Co., Mo., 406 S.W.2d 553, 558(9); Knisely v. Leathe, Mo. (banc), 178 S.W. 453, 461(11); Ford v. Dyer, 148 Mo. 528, 541--542, 49 S.W. 1091, 1095(7); J. R. Watkins Co. v. Smith, Mo.App., 421 S.W.2d 527, 531--532(4); Hunt v. United States Fire Ins. Co. of New York, 239......
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