Goodwin Manufacturing Company v. Fritsch Foundry & Machine Company
| Decision Date | 31 October 1905 |
| Citation | 89 S.W. 911,115 Mo.App. 382 |
| Parties | GOODWIN MANUFACTURING COMPANY, Appellant, v. FRITSCH FOUNDRY & MACHINE COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. John A. Blevins Judge.
AFFIRMED AND REMANDED.
Order affirmed and cause remanded.
E. S Robert and Douglas W. Robert for appellant.
No objection having been made to the testimony that the machines were not only to be like the machines in the plaintiff's factory, but also like the cut shown the defendant, and no affidavit of surprise having been filed, it was not error to instruct the jury that they must believe that the machines were to be like the old ones and the cut shown. The instruction was based upon evidence not objected to. R. S 1899, sec. 655; Hensler v. Stix, 88 S.W. 108 (113 Mo.App. 162); Wall v. Casualty Co., 86 S.W. 491 (111 Mo.App. 504); Litton v. Railway, 85 S.W. 978 (111 Mo.App. 140); Cameron v. Tool Co., 83 S.W. 279 (108 Mo.App. 265); Donovan v. Brewing Co., 92 Mo.App 341; Mooneyham v. Cella, 91 Mo.App. 341; Rumbolz v. Bennett, 86 Mo.App. 177; Friermuth v. McKee, 86 Mo.App. 64; Hansberger v. Railway, 82 Mo.App. 574; Toppass v. Mfg. Co., 74 Mo.App. 402; Madison v. Railway, 60 Mo.App. 599; Horse Co. v. Bennett, 62 Mo.App. 333; Stewart v. Goodrich, 9 Mo.App. 125; Harrison v. Lakenan, 88 S.W. 53; Fisher v. Realty Co., 159 Mo. 562, 62 S.W. 443; Chouquette v. Railway, 152 Mo. 257, 53 S.W. 897; Howard Co. v. Baker, 119 Mo. l. c., 405, 24 S.W. 200; Bank v. Leyser, 116 Mo. 51, 22 S.W. 504; Mellor v. Railway, 105 Mo. 455, 16 S.W. 849; Ridenhour v. Railway, 102 Mo. 270, 13 S.W. 889; 14 S.W. 760.
Geo. L. Edwards and Edward D'Arcy for respondent.
(1) It is the duty of the buyer to inspect goods within a reasonable time after their receipt. If, upon such inspection, the goods are found to be defective, the buyer has two courses open: first, he may accept and use the goods and sue the vendor on his warranty, if any, for damages caused by the defect; second, he may reject the goods, and return or offer to return them. In this case, he may sue for the recovery of the purchase price, if paid, or, if not paid, may successfully resist its payment. In either event, the buyer must notify the vendor of his decision, within a reasonable time after the receipt of the goods. Benjamin on Sales, 1888 (Bennett's Notes), secs. 666, 703; Tower v. Pauly, 51 Mo.App. 75; Viertel v. Smith, 55 Mo.App. 617; Branson v. Turner, 77 Mo. 489; World Pub. Co. v. Hull, 81 Mo.App. 277; Johnson v. Whitman Agricultural Co., 20 Mo.App. 100; Cahn v. Reid, 18 Mo.App. 115; Robbins v. Phillips, 68 Mo. 100; Steam Heating Co. v. Gas Fixture Co., 60 Mo.App. 149; Overton v. Brown, 63 Mo.App. 49; Johnson-Brinkman Co. v. Railway, 52 Mo.App. 408; Taylor v. Short, 107 Mo. 385, 17 S.W. 970; Olmstead v. Smith, 87 Mo. 602; Carroll v. Paul, 16 Mo. 239. (2) Even if the instruction was a misdirection it would not be error unless the jury was misled to the injury of the defendant. Davis v. Brown, 67 Mo. 313; Hook v. Craghead, 35 Mo. 380. The meaning of an instruction must be gathered from it as a whole and not by critically separating it or dissecting it. Feary v. O'Neill, 149 Mo. 475, 50 S.W. 918; Allberger v. White, 117 Mo. 362, 23 S.W. 92; 2 Thompson on Trials, p. 1757; Nave v. Flack, 90 Ind. 205-211; Water & Light Co. v. City of Lamar, 140 Mo. l. c. 157, 39 S.W. 768; Graff v. Foster, 67 Mo. 520; Water Co. v. Aurora, 129 Mo. 540, 31 S.W. 946; Mechem on Sales (1901), sec. 1392. (3) There cannot be a declaration on one cause of action and a recovery on another. Reed v. Bott, 100 Mo. 62, 12 S.W. 347; 14 S.W. 1089; Phleger v. Weltner, 21 Mo.App. 580; Gray v. Race, 51 Mo.App. 553; Feurth v. Anderson, 87 Mo. 354; Faulkner v. Faulkner, 73 Mo. 327; Newham v. Kenton, 79 Mo. 382; Waldhier v. Railway, 71 Mo. 514; Bank v. Armstrong, 62 Mo. 59; Whipple v. Peter Cooper B. & L. Assn., 55 Mo.App. 554; Huston v. Tyler, 140 Mo. 252, 36 S.W. 654; 41 S.W. 795; Cole v. Armour, 154 Mo. 333, 55 S.W. 476; Bank of Fitchburg v. Westlake, 21 Mo.App. 565; Price v. Railway, 72 Mo. 414; Matson v. Frazer, 48 Mo.App. 302. (4) An entire failure of proof occurs where "there is a total failure to sustain an allegation stating a distinct and independent ground of recovery, as where the fact proved negatives the one alleged." When this happens, the plaintiff's case must fail. R. S. 1899, sec. 798; Hensler v. Stix, 113 Mo.App. 162, 88 S.W. 112. "As the trial issues must be within the paper issues, instructions must be framed with regard to the paper issues made." Link v. Vaughn, 17 Mo. 585; Ensworth v. Barton, 60 Mo. 511; Hubbard v. Railroad, 63 Mo. 68; Bank v. Armstrong, 62 Mo. 70; Clements v. Yeates, 69 Mo. 623; Stix v. Mathews, 63 Mo. 371; Glass v. Gelvin, 80 Mo. 297. (5) Where a buyer fails to reject defective goods, for a year or more after their receipt, he loses his right to rescind the contract and sue for the purchase price paid, and is confined to an action on his warranty. If he brings an action based on rescission, he misconceives his remedy. Tower v. Pauly, 51 Mo.App. 75; Viertel v. Smith, 55 Mo.App. 617; Whether the buyer has rescinded the sale, and so notified the vendor, within a reasonable time, is ordinarily a question of fact for the jury, but "the time may be so long, and the delay in offering to rescind may be so entirely without excuse or fair explanation, that the courts will, as matter of law, declare the same unreasonable." World Publishing Co. v. Hull, 81 Mo.App. 277.
The parties to this action are both in corporated companies doing business in the city of St. Louis. The plaintiff manufactures mining candles and the defendant machinery of different kinds. In May, 1899, the plaintiff gave the defendant an order to manufacture ten candle machines, to be used in making candles. Each of the machines was to mold 360 candles at a time. The plaintiff had been using machines which were manufactured by a concern in Cincinnati, Ohio. They contained molds for 96 candles, or about one-fourth of the capacity of the machines ordered of the defendant. It appears the Cincinnati machine was patented, but the defendant said it could manufacture machines like it by making some slight alterations, which would prevent an infringement of the patents. Eight of the machines were manufactured and delivered to the plaintiff and paid for in due course of business. The cost of the eight was $ 2,280, or $ 285 each. The testimony for the plaintiff is that these machines, instead of being according to contract, were so defective in construction as to be useless and worthless. The petition says defendant agreed to furnish machines which would manufacture candles weighing six to the pound, and that this would require a longer mold than the machines plaintiff was using; that the new machines were to be so constructed that the candles molded in them could be cooled by water; whereas the candles in the old machines were cooled by air. The alleged faults of the machines furnished by the defendant are these: First, the molds at the bottom were so constructed, in respect of having larger holes in them than the old machines had, and lacking flanges such as were on the old ones, that water seeped in and wet the candlewicks; second, the molds broke in expanding and contracting, owing to the necessity, entailed by their faulty construction, of screwing them very tight to keep the water out; third, the molds were of shorter diameter than those in the old machines so that the candles did not run six to the pound as it was agreed they should; fourth, the sides of the pans on the tops of the molds were one-quarter of an inch lower than the sides of the pans on the machines in use by the plaintiff and, in consequence, permitted the ends of the candles to cool so rapidly that the ends were not smooth but had airholes in them; fifth, the racks above the machines would not hold the candles in proper position for cooling. The testimony for the plaintiff conduced to prove the machines furnished by the defendant had each of those faults and because of them were worthless, as marketable candles could not be molded in them. The eight machines were delivered to the plaintiff at different times from August 31 to November 27, 1899. A few months afterwards the molds were connected with the motor machinery in the factory and an unsuccessful attempt made to manufacture candles with them. Defendant's officers were notified of their defects and, from time to time, employees of the defendant worked on the molds in an effort to remedy their faults. The evidence for the plaintiff goes to show that Arthur Fritsch, president of the defendant company, repeatedly promised to put the molds in working order. Plaintiff's officers had purchased other machinery of defendant which at first did not operate satisfactorily, but had been made to by defendant, and therefore, reliance was placed on defendant's promises in this instance. There was an account current between the parties for different pieces of machinery plaintiff had purchased, on which account payments were made from time to time, and the effect of these payments was to cover the price of the eight machines in controversy. Now, one defense to the action is that the plaintiff accepted, paid for and used the machines, instead of offering to return them and demanding repayment of their price within a reasonable time--in other words, that plaintiff did not seek to rescind the contract promptly after obtaining knowledge of the faults of the machines. The demand for the return of the money and the tender of the machines to the defendant occurred November 13, 1901, and was refused by the defendant on the following day on the ground that it had fully complied...
To continue reading
Request your trial