J. B. Colt Co. v. Farmer

• Decision Date: 17 July 1926
• Docket Number: No. 3924.,3924.
• Citation: 286 S.W. 399
• Parties: J. B. COLT CO. v. FARMER.
• Court: Missouri Court of Appeals

286 S.W. 399

J. B. COLT CO. v. FARMER.

No. 3924.

Springfield Court of Appeals. Missouri.

July 17, 1926.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

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

Shelley I. Stiles and B. A. McKay, both of Caruthersville, and Wilfred C. Kozel, of New York City, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

BRADLEY, J.

This is an action on a promissory note in the principal sum of $334.15. Trial was had before the court and a jury, resulting in a verdict and judgment for defendant. Plaintiff duly filed motion for a new trial, and, this being overruled, this appeal followed. The petition is in the usual form. The answer pleads total failure of consideration, and also pleads in effect that a new and different parol contract was made which superseded the original and written contract.

June 11, 1920, plaintiff signed a written order whereby he ordered shipped to him a certain carbide lighting plant and fixtures for which the note sued on was given. The order provided that it would become a contract between plaintiff and defendant upon signed acceptance by defendant. The order was accepted by defendant on July 1, 1920, and, therefore, on that date became a contract between the parties.

This contract, among things, contained the following provisions, which we regard as of importance in the disposition of this cause:

"Warranty.—It is agreed that in accepting this order the company warrants the apparatus furnished to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and that it is on the permitted list of the national board of fire underwriters.

"If the purchaser shall instruct the company not to ship the material the company may at its option either hold the goods for the purchaser or deliver the material to a common carrier consigned to the purchaser, and either action on the part of the company shall be considered as full performance of the contract by the company.

"This order shall become a contract between the purchaser and the company upon acceptance thereof in the space below by an officer or a credit manager of said company; it being understood that this instrument, upon such acceptance, covers all of the agreements between the purchaser and the company, and that no agent or representative of the company has made any statements or agreements verbal or written, modifying or adding to the terms and conditions herein set forth. It is further understood that upon the acceptance of this order the contract so made cannot be altered or modified by any agent of the company or in any manner except by agreement in writing between the purchaser and the company acting by one of its officers."

Before the plant was shipped defendant countermanded his order and directed that shipment be not made, but defendant shipped anyway in disregard of the countermand. But defendant did not rest on his countermand. Although the note bears the date July 1, 1920, it was in fact signed after that time and after defendant had countermanded. Of the countermand and signing the note defendant testified:

"I tried to rue the bargain before I sold the store. They never answered my letter countermanding the order is why I signed the note. I wanted to go ahead with my agreement, and I continued wanting to do that until the plant came and I refused to take it.

"Q. What had transpired from the time you signed the note when you wanted to go ahead with your agreement and the coming of the plant to keep you from taking it? A. It just didn't come at the proper time. I heard so much talking about the other plants wasn't giving satisfaction. * * *

"Q. I will ask you if it was your intention at the time you signed the note to accept this plant and pay that note? A. I was going according to our contract and statement; if...