Murmann v. Wissler

Decision Date16 January 1906
PartiesMURMANN et al. v. WISSLER.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Henry Murmann and others against A. Wissler. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Plaintiffs have been partners in the candy business, in the city of St. Louis, for a number of years. In 1902, 1903, and 1904 they had a contract with the Columbia, Grand, and Imperial theaters, in said city, for selling candy to theater goers by means of a slot machine, described as an automatic box, which would open by dropping a silver dime into the slot. These boxes were small affairs, and when in use were screwed on the back of the theater seats. In January, 1902, plaintiffs had installed their boxes in the Columbia Theater, but had none to put in the Grand and Imperial. The boxes they had in the Columbia were cast-iron affairs and could not be manufactured as readily as they desired. With a view of installing boxes in the Grand and Imperial Theaters. Murmann, one of the plaintiffs, went to defendant Wissler, who is a manufacturer, principally of civil engineers' and surveyors' instruments, with one of the iron boxes in his hand, to see if defendant could manufacture a lighter box in shorter time than it would require to make them of cast iron. After discussing the matter in several interviews, Murmann gave defendant an order for 1,500 boxes to be made of sheet steel, for which he agreed to pay $750, $400 of which he paid when he gave the order. The balance was to be paid when the order was filled. Murmann testified that defendant guarantied the boxes would be as good or better than the sample (which was made of cast iron) and agreed to deliver them in 60 days; that the contract was made in October or November, 1902, but the firm received no boxes until April 4 or 5, 1903, when it got 645 from the defendant; that of this number 30 had to be removed and returned to defendant, for the reason the lids would not remain closed; that in a week or 10 days 150 more were found out of order and would not work, and he returned them to defendant and received others; that they were continually getting out of order and he was continually returning them to defendant and getting others, so at the end of the season (May 15, 1903) there were but little over one-half of the boxes in use; that the 1,500 boxes were never received; that from May 15th to August following he kept after defendant and got enough boxes to fit up both theaters (the Grand and Imperial), altogether something over 1,300 boxes, but had the same trouble with them, and after many complaints defendant suggested that the defect could be remedied by inserting a steel pin so as to prevent the catch from flying back; that it was agreed that the defendant should insert the pins for 7 cents per box or per pin; that the pins were put in 860 boxes and they worked much better, but did not fill the purpose for which they were intended, and plaintiffs were continually returning the boxes to defendant until he finally said, "You fellows are taking up too much time," and that he did not want the boxes at his shop; that plaintiffs tried the boxes for the seasons of 1903 and 1904, but they were continually getting out of order, would not answer the purpose for which they were intended, the public was dissatisfied with them, and on January 9, 1904, they took them out. Murmann also testified that the cast-iron boxes in the Columbia worked well and were still in the theater, that plaintiffs paid workmen from $350 to $360 for putting in the boxes made by the defendant, and that he (Murmann) charged his company $150 for his time spent in looking after the boxes. Murmann's evidence shows that the cast-iron boxes had a brass spring, and that he told defendant a good many of these springs broke and he thought a steel spring might be stronger, but defendant made no answer to this suggestion. He stated that the total number of boxes received from defendant was 1,376, delivered between April 1 and August 1, 1903. The chief difficulty with the automatic operation of the boxes was in the spring, and Murmann testified that defendant always claimed the spring was "too powerful." The evidence for plaintiffs tends to show that their loss per day by not having proper boxes was about $10. The suit was to recover money paid for the boxes and for the loss of profits that would have accrued had proper boxes been furnished at the time it was agreed they should be furnished. The answer was a general denial and an affirmative statement that the boxes were manufactured according to Murmann's instructions and under his immediate supervision. A counter claim was also pleaded in which defendant claimed plaintiffs owed him $59.75 for inserting pins in the boxes, $20.40 for work and labor on other boxes, and $29.50 for putting steel springs in cast-iron boxes, and the balance of the contract price for boxes manufactured and delivered to plaintiffs. The defendant testified that he did not agree to manufacture the boxes in any particular time, but told Murmann it would take at least three months to make the necessary die for making the boxes; that he did not agree to make the boxes like the sample nor guaranty that they should be as good or better than the cast-iron ones; that the boxes were made according to Murmann's directions and practically under his supervision; that he gave special instructions to put in steel springs, which were too strong,...

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11 cases
  • The Belt Seed Co. v. Mitchelhill Seed Co.
    • United States
    • Missouri Court of Appeals
    • June 16, 1941
    ...140 Mo. 145, 39 S.W. 768; Henderson v. Koenig, 192 Mo. 690, 91 S.W. 88; Hayes v. Manning, 263 Mo. 1, 172 S.W. 897; Murmann v. Wissler, 116 Mo. App. 397, 92 S.W. 355. (3) The court erred in admitting incompetent testimony on behalf of plaintiff. Jordan v. Daniels, 27 S.W. (2d) 1052; McClurg ......
  • Belt Seed Co. v. Mitchelhill Seed Co.
    • United States
    • Kansas Court of Appeals
    • June 16, 1941
    ... ... 145, 39 S.W. 768; Henderson v. Koenig, 192 Mo. 690, ... 91 S.W. 88; Hayes v. Manning, 263 Mo. 1, 172 S.W ... 897; Murmann v. Wissler, 116 Mo.App. 397, 92 S.W ... 355. (3) The court erred in admitting incompetent testimony ... on behalf of plaintiff. Jordan v ... ...
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    • United States
    • Missouri Court of Appeals
    • September 23, 1929
    ...Insurance Co., 246 S.W. 623; Springfield Gas & Electric Co. v. Surety Company, 250 S.W. 78; Henderson v. Koenig, 192 Mo. 690; Murrmann v. Wisslei, 116 Mo.App. 397; Reed v. Bankers Union, 121 Mo.App. 419. Representations are not part of a contract in the sense that warranties are, but induce......
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    ...Insurance Co., 246 S.W. 623; Springfield Gas & Electric Co. v. Surety Company, 250 S.W. 78; Henderson v. Koenig, 192 Mo. 690; Murrmann v. Wisslei, 116 Mo. App. 397; Reed v. Bankers Union, 121 Mo. App. 419. (2) Representations are not part of a contract in the sense that warranties are but i......
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