Kenyon Printing & Mfg. Co. v. Barnsley Bros. Cutlery Co.

• Decision Date: 04 April 1910
• Parties: KENYON PRINTING & MFG. CO. v. BARNSLEY BROS. CUTLERY CO.
• Court: Missouri Court of Appeals

127 S.W. 666

143 Mo. App. 518

KENYON PRINTING & MFG. CO. v. BARNSLEY BROS. CUTLERY CO.

Springfield Court of Appeals. Missouri.

April 4, 1910.

Motion to Modify Judgment Overruled May 3, 1910.

1. CONTRACTS (§ 321) — EXECUTORY CONTRACT — REPUDIATION — NOTICE.

A party to an executory contract cannot proceed to execute it after he has been notified that the other party will not stand by the contract, and recover on the contract, but must sue for the original breach by refusal to perform.

2. CONTRACTS (§ 169) — CONSTRUCTION — SURROUNDING CIRCUMSTANCES.

In construing contracts the surrounding circumstances must be considered.

3. SALES (§ 273) — GOODS SOLD FOR CERTAIN PURPOSE — IMPLIED WARRANTY — FITNESS.

Where maps were sold for a certain purpose, there was an implied warranty that they were fit for that purpose.

4. SALES (§ 166) — GOODS BOUGHT FOR CERTAIN PURPOSE — REFUSAL TO ACCEPT — BUYER'S RIGHT.

Where maps were bought for a particular purpose, and at the time the order was given the salesman did not have the map, but he subsequently procured one and left it with the buyer, and, upon examination, it was discovered that it was an old map and practically useless, the buyer had the right to notify the seller that he would not accept delivery.

5. SALES (§ 119) — CONTRACT — ACCEPTANCE — RESCISSION.

Although a contract for the sale of maps was accepted by the buyer, if after it was signed the salesman presented to the buyer a copy of the map, and it was shown upon inspection that it was not as represented, the buyer had the right to rescind the contract.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

Action by the Kenyon Printing & Manufacturing Company against Barnsley Bros. Cutlery Company. Judgment for plaintiff, and defendant appeals. Reversed, without remanding.

D. H. Kemp, for appellant. A. M. Peel and R. H. Davis, for respondent.

GRAY, J.

The date and place of birth of this cause was August, 1907, in the circuit court of Barry county. The plaintiff is an Iowa corporation, and the defendant a Missouri corporation. On the 5th day of February, 1907, a traveling salesman or solicitor for the plaintiff called at the office of the defendant in Monett, and procured an order as follows: "507-509 Locust Street, Des Moines, Iowa. Feby. 5, 1907. The Kenyon Printing & Mfg. Co. Please ship us by freight to Barnsley Bros. Cutlery Co., Monett, Mo. Shall we show proof? Yes. Date to ship: Mch 15, '07. As this is contract work, we agree that this order is not subject to cancellation, and that all agreements relative to this order are stated herein. Article: 500 National U. S. map hangers without calendars, blue border. 500 Panama map hangers, without calendars, blue border. 500 tubes with labels attached. Price:

Yours truly, Barnsley Bros. Cutlery Co. per U. S. Barnsley, Customer. S. Greenbaum, Salesman."

The petition alleged the making of the order, and, when the same was received, plaintiff accepted and proceeded to manufacture and prepare for the defendant the articles named in the order, and that during the manufacturing thereof defendant refused to accept and pay for the same, and alleged damages in the sum of $67.50.

The answer admitted the making of the order, but stated that at the time the same was given plaintiff's solicitor represented that the maps were already printed and kept in stock by plaintiff, and that each of said maps was in every respect up to date, and showed all the states, railroads, cities, and towns; that defendant, relying on the representations, gave the order, but that the representations were untrue, and on the 12th day of February, 1907, and before it had sent to plaintiff any business card or advertisements to be lithographed by plaintiff on the maps, defendant ascertained that the maps were not up to date, but were old and out of date, and copied and printed from an old plate, and did not show the lines of railroads nor towns or cities, and did not even show the city of Monett, the home town of the defendant, although it was incorporated in 1888 and had a population of 5,000 inhabitants; that upon obtaining said information defendant immediately notified plaintiff of such facts, and that it declined the order and refused to send any business cards.

The testimony shows the purpose of the defendant in making the order was to procure the maps for advertising purposes. It stands admitted that the order was received on the 8th of February, and that on the 10th of February plaintiff claims it commenced to fill the same. On February 12, 1907, the defendant wrote, and plaintiff received, the following letter: "Monett, Mo., Feb. 12, 07. The Kenyon Printing Co. Des Moines, Ia. — Gentlemen: On looking over the sample map left by your salesman we find that it is a very old plate, so old in fact that it gives a little cross roads store near Monett and does not mention nor show our own town of over 6,000 inhabitants. It would simply be a `Joner' to us to send out a map without at least showing our own city. We find that railroads that were built near here years and years ago are not shown. In fact it is not what it was represented to be and must decline to stand by the order. We like this scheme...