Noble v. Nelson

• Decision Date: 03 April 1911
• Citation: 136 S.W. 12,154 Mo. App. 616
• Parties: NOBLE v. NELSON.
• Court: Missouri Court of Appeals

136 S.W. 12

154 Mo. App. 616

NOBLE v. NELSON.

Springfield Court of Appeals. Missouri.

April 3, 1911.

1. SALES (§ 428) — BREACH OF CONTRACT BY SELLER—REMEDY OF BUYER.

Where a seller of a particular class of goods, or of goods for a particular purpose, ships goods of an inferior quality, the buyer may accept and use them, and, when sued for the price, may show their inferior quality, so as to be liable only for their reasonable value.

2. APPEAL AND ERROR (§ 1010)—FINDINGS— CONCLUSIVENESS.

A finding of the court sitting as a jury, sustained by evidence, is conclusive on appeal.

Appeal from Circuit Court, Camden County; C. H. Skinker, Judge.

Action by W. K. Noble against A. T. Nelson. From a judgment for defendant, plaintiff appeals. Affirmed.

Wright Bros., for appellant. J. W. Farris, for respondent.

COX, J.

Action for compensation for barrel hoops sold by plaintiff to defendant. Defendant, by his answer, admitted receiving the hoops, but pleaded as a defense to the action that the hoops shipped him by plaintiff were not of the character he had ordered, and were not of the value he had agreed to pay, and that the amount which he had paid was full compensation for the goods received. Trial was had before the court without a jury, resulting in a judgment in defendant's favor, and plaintiff has appealed.

Plaintiff is a manufacturer and dealer in cooperage stock at Ft. Wayne, Ind. Defendant is a resident of Lebanon, Mo. Defendant ordered from plaintiff 150,000 No. 1 6-foot coil hoops. Plaintiff accepted the order, and agreed to furnish the hoops at $9.40 per thousand f. o. b. cars at Lebanon. The hoops were shipped in three cars. The first car was received in June, 1906, and was paid for without examining the hoops. The second car was received in July, and the third car in October. The hoops in these cars were examined before they were paid for, and defendant remitted in payment for what he thought those cars were worth, $758.59. The balance claimed by plaintiff was $353.46. The evidence offered by defendant as a defense to the suit tended to show that the hoops received were not all 6-foot hoops, as he had ordered, but part of them were only 4 and 4½ feet long; that some of them were rotten and brash, and so thin as to be useless. The defendant at no time notified the plaintiff that the hoops shipped were not of the character bought, and plaintiff now insists that, having received and used the hoops, he is bound by his contract, and must pay the...