J. B. Colt Co. v. Watson

• Decision Date: 29 January 1923
• Docket Number: No. 3218.,3218.
• Citation: 247 S.W. 493
• Parties: J. B. COLT CO. v. WATSON.
• Court: Missouri Court of Appeals

247 S.W. 493

J. B. COLT CO. v. WATSON.

No. 3218.

Springfield Court of Appeals. Missouri.

January 29, 1923.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by the J. B. Colt Company against E. E. Watson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

S. I. Stiles and Sam J. Corbett, both of Caruthersville, for appellant.

Shepard & Hawkins, of Caruthersville, for respondent.

FARRINGTON, J.

Trial by jury, verdict and judgment for defendant in a suit brought by the plaintiff for the purchase price of an acetylene generator. Several defenses were set up in the answer: First, a question of fact concerning an acceptance of the contract not involved here. Second, a question of fact concerning whether the plant was delivered in reasonable time; the written contract setting no date of delivery fixed by law the time as written, a reasonable time. Third, a charge that plaintiff was a foreign corporation doing business in Missouri in violation of section 9792, R. S. of 1919. The evidence fails to sustain this defense. On the other hand, it shows this plaintiff had no stock of goods in Missouri; that the goods it sold in Missouri were manufactured and kept in other states, and the sales were made through solicitors, who took orders and sent them in to the company's home office. Its business was interstate commerce. The fourth ground of defense was that at the time the written contract was made, certain oral representations were Made by the plaintiff.

The defendant was permitted by the court to show that the agent of the plaintiff represented to him in making this sale that the goods would lie delivered within from 15 to 20 days. This, under the rule of evidence as well established in this state, was a change of the written contract from that of a reasonable time in which to deliver the goods to a specified time. It has been held that this was error in the case of Blake Manfg. Co. v. Jaeger, 81 Mo. App. 230, and Met. Street Railway Co. v. Broderick Rope Co. (Mo. App.) 182 S. W. 765. See, also, 22 Corpus Juris, § 1382, page 1076, wherein this question is discussed, and the cases cited under the text show that Missouri holds that this evidence is inadmissible because it tends to vary and change the terms of a written contract.

In addition to the above, error is charged because the defendant was permitted to show by the depot agent that a man by the name of Wilkerson represented himself as an agent of the plaintiff. Of course, the statement made by the agent to third parties was incompetent. Mathes v. Switzer Lumber Co., 173 Mo. App. 239, 153 S. W. 729; Carp v. Queen insurance Co., 203 Mo. loc. cit. 333, 101 S. W. 78. On a retrial, the fact as to whether Wilkerson was the agent of the defendant can probably be shown by competent evidence. In this connection, however, we think that the evidence of the depot agent is competent to show that Wilkerson bought the goods when sold for storage, and had them reshipped to plaint...