Mark v. H. D. Williams Cooperage Company
| Decision Date | 29 May 1907 |
| Citation | 103 S.W. 20,204 Mo. 242 |
| Parties | MARK et al., Appellants, v. H. D. WILLIAMS COOPERAGE COMPANY |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. J. L. Fort, Judge.
Reversed and remanded.
McKeighan & Watts, J. P. McBaine and L. R. Thomason for appellants.
(1) What respondent thought the figures describing the discount meant is not material. It accepted the offer and is bound by its terms. Expressed intention only is considered in determining whether the parties' minds met, and the unexpressed or secret intention of one party cannot change the obligation. The price of the pipe can only be calculated by the application of the decimal fraction used by appellants to describe the discount and not by considering the figures used to describe the decimal as two separate discounts. 1 Parsons on Contracts (9 Ed.), 511, note 1; 20 Am. and Eng Ency. Law (2 Ed.), 913; Moffett-Hodgkins Co. v Rochester, 91 F. 28; Mansfield v. Hodgdon, 147 Mass. 304; Brewington v. Mesker, 51 Mo.App. 348; Easterly Harvesting Mach. Co. v. Crisnell, 38 Mo.App. 471; McCormick v. Lynch, 69 Mo.App. 524; Hambelt Bros. v. Mill Company, 77 Mo.App. 672; Benn v. Pritchett, 163 Mo. 571. (2) In those cases (a) where a manufacturer sells a described and defined article manufactured by him, and does not undertake to supply a buyer, relying upon him to furnish an article suitable for a particular purpose, though the manufacturer has knowledge of the purpose for which the buyer intends to use it; or where (b) a manufacturer sells an article made by himself, by description or trade name without knowledge on his part of the particular purpose for which the buyer intends to use it, there is no implied warranty that the article so sold is suitable for the purpose for which the buyer intends to use it. 2 Mechem on Sales, p. 1160; Burdick on Sales, p. 106; Benjamin on Sales (6 Ed.), p. 624; Jones v. Padgett, 24 Q. B. Div. 650; Seitz v. Brewers Refrigerating Co., 141 U.S. 510; Pullman Palace Car Co. v. Railroad, 157 U.S. 94; Davis Calyx Drill Co. v. Mallory, 137 F. 332; Grand Avenue Hotel Co. v. Wharton, 79 F. 43; Morris v. Bradley Fertilizer Co., 64 F. 55; Ottowa Bottle & Glass Co. v. Gunther, 31 F. 208; Talbot Paving Co. v. Gorman, 103 Mich. 403; Milwaukee Boiler Co. v. Duman, 87 Wis. 120; Ivans v. Laury, 67 N. J. Law 153; Gatchet v. Warren, 72 Ala. 288; Lukens v. Freiund, 27 Kan. 664; White v. Oakes, 88 Me. 367; Beck v. Sheldon, 48 N.Y. 365; Warren Glass Works v. Keystone Coal Co., 65 Md. 547; Gregg v. Page Belting Co., 69 N.H. 247; Wilson v. Lawrence, 139 Mass. 318; Port Carbon Iron Co. v. Graves, 68 Pa. St. 149; Berthold v. Seevers Mfg. Co., 89 Iowa 506; Bancroft v. San Francisco Tool Co., 120 Cal. 228; Oil Creek Gold Min. Co. v. Fairbanks-Morse Co., 19 Colo.App. 142; Goulds v. Brophy, 42 Minn. 109; Dickson v. Jordan, 11 Ired. Law 166; Burbrow & Hearne Mfg. Co. v. Cuming, 35 A.D. 376; Peoria Grape Sugar Co. v. Turney, 175 Ill. 631; Jarecki Mfg. Co. v. Kerr, 165 Pa. St. 529; Fairbanks, Morse & Co. v. Baskett, 98 Mo.App. 53. (3) And also in cases where, from the circumstances of the sale of the goods by a manufacturer, the law implies a warranty that the goods are of good quality and suitable for a particular purpose, and the purchaser after inspecting the goods learns that they are defective and not suitable for the purpose for which they were bought and thereafter uses them for the purpose intended, the purchaser using the goods under such circumstances cannot, in an action by the manufacturer for the price of the goods, recover from the manufacturer damages for injuries sustained by reason of the defects or unfitness of the goods. Loss by reason of the use of goods which he knew were defective and unsuitable must fall upon the purchaser. 2 Joyce on Damages, sec. 1660, p. 1711; 1 Sutherland on Damages (3 Ed.), sec. 89, p. 261; 30 Am. and Eng. Ency. Law (2 Ed.), 223; Haysler v. Owen, 61 Mo. 270; Harrison v. Railroad, 88 Mo. 625; Fisher v. Goebel, 40 Mo. 475; Tower v. Pauley, 76 Mo.App. 287; Callahan v. Morse, 37 Mo.App. 189; Dietrich v. Railroad, 89 Mo.App. 36; Peck & Co. v. K. C. Metal R. & C. Co., 96 Mo.App. 212; Nye v. Iowa City Alcohol Works, 51 Iowa 129; Berthold v. Seevers Mfg. Co., 89 Iowa 506; Bruce v. Fiss, Doerr & Carroll Horse Co., 47 A.D. 273; Long & Smith v. Clapp, 15 Neb. 17; Gale Sulky Harrow Mfg. Co. v. Moore, 46 Kan. 324; Brush v. Smith, 111 Iowa 217; Bates v. Fish Bros. Wagon Co., 50 A.D. 38, 169 N.Y. 587; Nashua Iron & Steel Co. v. Brush, 91 F. 213; Hitchcock v. Hunt, 28 Conn. 343. (4) Nor should respondent recover on its counterclaim any part of the purchase price of the pipe. Where goods are sold without an express warranty, inspected by the purchaser, known to be inferior in quality to the goods bought and thereafter accepted and used, the purchaser cannot, in an action for the purchase price, set up that they were not of the quality bought. Acceptance of goods under such circumstances, where there is not an express warranty, precludes the purchaser from thereafter complaining of the quality of the article accepted. 30 Am. & Eng. Ency. Law (2 Ed.), 209; 2 Mechem on Sales, sec. 1392, p. 1204; New Era Mfg. Co. v. O'Reilly, 95 S.W. 322; Waterworks v. Joplin, 177 Mo. 496; Redlands Orange Growers Assn. v. Gorman, 161 Mo. 203; Lamar Water & Electric Light Co. v. City of Lamar, 140 Mo. 145; Graff v. Foster, 67 Mo. 512; Stevens v. McKay, 40 Mo. 224; Lee v. Bangs, 43 Minn. 23; McClure v. Jefferson, 85 Wis. 208; Jones v. McEwen, 91 Ky. 373; Pierson v. Crooks, 115 N.Y. 539; Williams v. Robb, 104 Mich. 242; Comstock v. Sanger, 51 Mich. 497; Studer v. Bleistein, 115 N.Y. 316; Reed v. Randall, 29 N.Y. 358; Coploy Iron Co. v. Pope, 108 N.Y. 232; Day v. Pool, 52 N.Y. 416; Stevens v. Smith, 21 Vt. 90; Omaha Coal Co. v. Fay, 37 Neb. 68.
Phillips & Phillips for respondent.
(1) Respondent's mistake as to the quotation of the price of pipe, as made by appellants (if it was a mistake) was not an unreasonable mistake. A mere glance at appellants' proposal will show that they used the decimal point in a way to mislead, by using fractions in the same line with the decimal point, to-wit: By using the fraction "1/2" when they desired to quote less than a whole number. If the proposal as to price is misunderstood by the acceptor, and the misunderstanding is reasonable, there is no agreement as to price. Clark on Contracts, p. 302; Rupley v. Daggett, 74 Ill. 351; Mummemhoff v. Randall, 19 Ind. 44; Fullerton v. Dalton, 58 Barb. (N. Y.) 236. There being no agreement between the parties to the contract as to the price of the articles sold, respondent would only be liable to appellants for the reasonable value of the property. Arnold v. Cason, 95 Mo.App. 426. (2) The pipe was defective in a way that could not be ascertained by mere inspection, and it was not until after respondent had installed the same in its plant that the discovery of its defective condition was made. It then became evident that the pipe was not reasonably fit for the purpose for which it was manufactured and sold by appellants and purchased by respondent. (3) When a contract for the sale and future delivery of an article is made, and the article is purchased for a specific purpose known to the vendor, there is, in the absence of express limitation to the contrary, an implied warranty that its condition will be such as to make it reasonably fit for that purpose. Lee v. Saddlery Co., 38 Mo.App. 201; Armstrong v. Johnson Tobacco Co., 40 Mo.App. 254; Brewing Assn. v. McEurve, 80 Mo.App. 429; Comings v. Leedy, 114 Mo. 454; Johnson v. Sproul, 50 Mo.App. 121. In case the vendor knows that the goods are purchased for a particular purpose, and they are found not to be fit for the purpose intended, the vendee may return them to the vendor, thereby rescinding the contract, or may keep them and defeat recovery of the purchase price to the extent of the difference between their value, if they had been of the quality contracted for, and their real value in their inferior condition. St. Louis Brew. Assn. v. McEurve, 80 Mo.App. 429; Norrison v. Leiser, 73 Mo.App. 95; Benj. on Sales, pp. 646, 649, 650; Poland v. Miller, 95 Ind. 387; Rogers v. Niles, 11 Oh. St. 48. Upon the sale of an article by the manufacturer there is an implied warranty that it will answer the purpose for which it was made. Brown v. Murphy, 31 Mass. 91; Overton v. Phelan, 2 Head (Tenn.) 445; Beers v. Williams, 18 Ill. 69; Walton v. Cody, 1 Wis. 420; Fisk v. Tank, 12 Wis. 276; Field v. Kinnear, 4 Kan. 476. (4) We concede that point 3 of appellants' brief is the law, but we contend that this law does not apply to this case, for the reason that the respondent did not know that the pipe in question was defective until it had been installed in its factory. Respondent's acceptance of the pipe at Poplar Bluff was under the belief that the pipe was reasonably fit for the purpose for which it was manufactured and sold.
Plaintiffs, doing business as partners in Chicago, Illinois, on June 20, 1902, sued defendant, a domestic corporation doing business in Butler county, Missouri, for a balance due on the sale and delivery of certain black and galvanized pipe of sundry dimensions on two dates, to-wit, March 22 and April 11, 1902. The petition counts on the theory that the agreed selling price of the pipe was $ 2,232.30, and that defendant had paid thereon $ 1,829.13, leaving a balance due of $ 403.17, for which amount judgment was prayed.
At a trial in February, 1904, to the court without a jury, the issues were found against plaintiffs, they recovering nothing. On the other hand, the issues were found in favor of defendant on a counterclaim and defendant recovered a judgment of $ 9,046.30. From this judgment plaintiffs appe...
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