Heimann v. Hatcher

• Decision Date: 15 February 1904
• Citation: 80 S.W. 729,106 Mo. App. 438
• Court: Missouri Court of Appeals
• Parties: HEIMANN v. HATCHER et al.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 729

106 Mo. App. 438

HEIMANN v. HATCHER et al.^*

Kansas City Court of Appeals. Missouri.

February 15, 1904.

SALES — BREACH OF WARRANTY — RESCISSION BY BUYER — NECESSITY OF RETURN.

1. While a buyer is not required to accept the goods bought when not according to agreement, yet when he does not return or offer to return them within a reasonable time, but retains them, he cannot, when sued for the price, escape

liability on the theory of total failure of consideration, though the goods are worthless for the purpose for which they were purchased, unless they are of no value for any other purpose.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Morris A. Heimann, doing business as the Window Dresser Supply & Chandelier Manufacturing Company, against B. N. Hatcher and others. From a judgment for defendants, plaintiff appeals. Reversed.

Shannon & Shannon, for appellant. Thomas Dolan, for respondents.

SMITH, P. J.

The defendants placed with the plaintiff an order for three show cases "that would shut out the dust and be reasonably airtight, neatly constructed, and would be useful to them in displaying their goods, and would protect their goods so displayed from injury by air and dust." The plaintiff shipped to defendants at Joplin three show cases, which were received, placed, and used in their store in displaying their goods. The cases did not meet the specifications of the order for them. The defendants notified the plaintiff of this fact, and that they would not accept them for that reason. The plaintiff thereupon wrote to them (defendants) to return the cases. The defendants then wrote the plaintiff that when they received the cases bought they would return those received. The contract price of the cases ordered was $32 each. The plaintiff brought his action for breach of the contract and on quantum meruit. The cause was submitted to the court without a jury. There were no instructions requested or given. The finding and judgment was for the defendants, and plaintiff filed a motion to set same aside on the ground that it was against the evidence, etc.

The defendants were not required to accept the show cases, still, if they did not return or offer to return them within a reasonable time after they discovered they were worthless for the purpose for which they were purchased, they could not plead a total failure of consideration when sued for the contract price, unless they were totally valueless for any purpose. It...