Lawson v. Williams Hardware Co.

• Decision Date: 05 February 1907
• Citation: 99 S.W. 814,122 Mo.App. 484
• Parties: LAWSON et al., Appellants, v. WILLIAMS HARDWARE COMPANY, Respondent
• Court: Missouri Court of Appeals

99 S.W. 814

122 Mo.App. 484

LAWSON et al., Appellants, v. WILLIAMS HARDWARE COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

February 5, 1907

Appeal from Cape Girardeau Circuit Court.--Hon. H. C. Riley, Judge.

AFFIRMED.

STATEMENT.--This action was instituted before a justice of the peace to recover the price of a wagon, sold by plaintiffs, a firm doing business in Cairo, Illinois, under the name of the Three States Buggy and Implement Company. The defendant corporation is engaged in business at Jackson, Missouri. The statement filed with the justice alleges that on or about April 8, 1903, at the special instance and request of defendant, plaintiffs sold and delivered to defendant a delivery wagon for the price of $ 42.50, and defendant promised and agreed to pay said price and refused to do so after demand. No answer was filed. The case went to the circuit court on appeal, and from the judgment rendered in the latter court an appeal was taken to this one. The contract for the purchase of the wagon was made by correspondence between the parties. By later correspondence the material facts of the dispute which arose out of the transaction are shown. Defendant ordered the wagon April 3 1903. The order was for "1 No. 29, W. T. Delivery Wagon," describing some particulars of it which need not be mentioned because they are not relevant to the controversy. Defendant received the wagon the latter part of April and turned it over to the customer for whom it had been ordered. The testimony goes to show that within a week after Rehan, the customer, began to use the wagon, the two hind wheels gave way under a load of freight much less than they ought to have supported if well constructed. Rehan returned the wagon to defendant and the latter sent the wheels to plaintiffs April 29, 1903, saying there was no way to fix the wheels except to send new ones, and to do so as soon as possible. On May 4th plaintiffs sent the wheels, which had been returned to them, to the Wayne Works, a corporation at Richmond, Indiana, which had manufactured the vehicle, and directed said corporation to send new wheels to defendant at Jackson, if necessary; if not, to repair the old ones and put them in first-class condition in every respect and forward them to defendant at Jackson. This letter urged the Wayne Works to give the matter prompt attention and the Wayne Works replied that prompt attention would be given. Defendant was notified by plaintiffs of these incidents. The next letter is from defendant to plaintiffs, under date of June 7, 1903 asking that the bill of lading for the wheels be sent at once, saying there was a hurry to get them and it would be a great accommodation for them to be sent immediately. On June 9th, plaintiffs wrote defendant that the Wayne Works at Richmond had written plaintiffs the wheels were shipped some weeks before, and plaintiffs would look into the affair and see why they had not been received by defendant. Some letters between plaintiff and the Wayne Works show the latter concern had shipped the wheels to defendant at Jackson on May 23d over the Pittsburg, Cincinnati, Chicago & St. Louis Railroad. The evidence shows this was the direct route from Richmond to Jackson. The wheels arrived at Jackson about the twentieth day of June. Rehan wanted to turn the wagon back to defendant about four weeks after the broken wheels had been returned to plaintiffs. On June 15th defendant shipped the wagon to plaintiffs but plaintiffs never received it. The testimony for plaintiffs goes to show the wheels were repaired as soon as possible. It was necessary to put several coats of paint on them and as they were not received by plaintiffs until May 6th, they could not be repaired and returned to defendant earlier than May 23d; something over two weeks thereafter. The wagon was sold on the following guarantee:

"All materials are carefully tested before going into the construction of our work as to strength, quality and durability. And for this reason we are safe in placing the following guaranty for one year on all our vehicles:

"We warrant our vehicles for one year, and will replace any wheel, axle or spring that gives away by defective material or workmanship within twelve months from the date of purchase. We insist that broken parts of defectives be returned to us prepaid, in order that they may be presented to foreman of factory to show him where the defects are. It will then be repaired and returned to purchaser by prepaid freight."

The court gave the following instructions:

"The court instructs the jury that if they find from the evidence that defendant did on the 3d day of April, 1903, order from plaintiffs a spring wagon described in the evidence; and if they find that plaintiffs did on the ___ day of April, 1903 ship to defendant in accordance with its order a spring wagon of the kind required by said order; and if they find from the evidence that defendant received and accepted said spring wagon from plaintiffs in April, 1903; and if they find that defendant on the 29th day of April, 1903, returned to plaintiffs two hind wheels of said spring wagon to have defects therein repaired, and that plaintiffs at once, on receipt of said wheels sent them to the Wayne Works, at Richmond, Indiana, to have the required repairs made, and that said Wayne Works promptly repaired said wheels and in reasonable time at the request and direction of plaintiffs delivered said wheels to the railroad agent for the Pittsburg, Cincinnati & St. Louis Ry. Co., at the station of said railroad in the city of Richmond, Indiana, for shipment to defendant at Jackson, Missouri; and if you find that such railway was the common carrier usually employed to convey freight from the town of Richmond, Indiana, to Jackson Missouri; then such delivery by said Wayne Works was equivalent to a delivery by plaintiffs to said railroad company for shipment to defendant, and such delivery to said railroad company constituted a delivery to defendant; and if the jury finds that defendant has not paid to plaintiffs the amount of the purchase price for said spring wagon; and if the jury find from the evidence that the payment of the purchase price is now due, then the plaintiffs are entitled to recover; and if the jury finds that plaintiffs are entitled to recover they will fix the amount of damage at such sum as they believe from the evidence there remains at this time unpaid on the purchase price of said spring wagon."

"The court instructs the jury that if you shall find and believe from the evidence that the wagon sold by plaintiffs to defendant was not fit for the purpose for which the ordinary wagon of its kind is made and used, but that by its ordinary use for such purpose, the hind wheels thereof broke down,...