Rice v. Lammers

• Decision Date: 05 December 1933
• Docket Number: No. 22675.,22675.
• Citation: 65 S.W.2d 151
• Parties: RICE v. LAMMERS.
• Court: Missouri Court of Appeals

65 S.W.2d 151

RICE v. LAMMERS.

No. 22675.

St. Louis Court of Appeals. Missouri.

December 5, 1933.

Appeal from Circuit Court, St. Louis County; Robert W. McElhinney, Judge.

"Not to be published in State Reports."

Action in the justice of the peace court by Elver L. Rice, trading as E. L. Rice & Company, against E. A. Lammers, trading as Lammers Pharmacy. On appeal to the circuit court from verdict for defendant, judgment was rendered for defendant, and plaintiff appeals.

Affirmed.

Ralph Ide, of Detroit, Mich., and Chas. L. Long, of St. Louis, for appellant.

Walter Wehrle and Herbert W. Ziercher, both of Clayton, for respondent.

McCULLEN, Judge.

This is a suit to recover the sale price of merchandise purchased from appellant (plaintiff) by respondent (defendant) under the terms of a written contract or order. It was begun in a justice of the peace court, where a jury returned a verdict in favor of defendant. On appeal to the circuit court of St. Louis county, a trial before the court and a jury resulted in a verdict and judgment for defendant. Plaintiff appeals.

Plaintiff's petition alleged that: "The defendant is indebted to plaintiff in the sum of two hundred and eighty-two dollars ($282) for merchandise sold and delivered by plaintiff to the defendant as per contract attached hereto and marked `Plaintiff's Exhibit A.'" Plaintiff prayed judgment for the amount above named, with interest from October 1, 1929.

Defendant filed an answer in the circuit court containing a general denial, and for further answer alleged, in substance, that plaintiff, through his agent, R. E. Scoville, offered defendant an assortment of jewelry and novelties for the price of $282, payable in installments, and at the time of the offer displayed samples which plaintiff's agent stated were of the same kind and quality contained in the bill of goods offered to defendant, and that plaintiff's agent represented other articles in said bill of goods as sterling silver and good quality gold and gold plating; that pursuant to such representations defendant agreed to purchase the goods so offered.

Defendant's answer further alleged that the bill of goods sent to him by plaintiff was of a kind and quality inferior to the samples displayed and described at the time defendant signed the order therefor; that at said time plaintiff fraudulently represented that the kind and quality of the goods to be forwarded to defendant were of the same kind and quality described and displayed to defendant and fraudulently misrepresented the quality of jewelry subsequently sent to defendant; that said false and fraudulent representations were made by plaintiff with intent to deceive defendant; and that defendant relied upon them, believed them to be true, was deceived thereby, and fraudulently led to believe that the order which he was thereby induced to sign was for a bill of goods of the same kind and quality so displayed and described.

It was then alleged in the answer that the bill of goods sent to him by plaintiff was of such an inferior kind and quality that he was unable to sell any part thereof; that said goods are unmarketable, unsalable, and valueless.

Plaintiff's reply was a general denial.

The contract or order, Plaintiff's Exhibit A, was introduced in evidence by plaintiff. It contained a list of the various articles under headings such as "Link Buttons," "Scarf Pins," "Chains," "Cigarette Cases," "Rings," "Brooches," "Ear Rings," "Fancy Necklaces," "Fancy Bracelets." Other articles were named in the list, but it is not necessary to mention them here. Under each heading appeared the number of such articles ordered, with the price per dozen and the total price opposite thereto. Nothing appears in the order to show the metals or materials contained in the articles of jewelry listed therein. A showcase, a ring tray, and 185 display gift boxes were listed, for which the order stated no charge was made.

The terms of purchase set forth in the order provided for payment of $282 in four equal payments to be made in two, four, six, and eight months from the date of the invoice, provided the purchaser notified plaintiff upon arrival of the jewelry that he would pay on such terms, otherwise the terms were cash, with a discount for payment in ten days. The order contained the following provision: "Verbal agreements with salesman are not binding." It was dated September 25, 1929, and was signed by both parties.

The evidence disclosed that Mr. Scoville, plaintiff's agent, called at defendant's place of business on September 25, 1929, and offered to sell defendant some jewelry, samples of which he displayed to defendant. Defendant testified that Mr. Scoville told him that his company was putting out a new line of jewelry; that Mr. Scoville said the samples were gold and silver jewelry and that the goods listed on the order were all made up and were duplicates of the samples which he showed defendant. Defendant said he relied on what Mr. Scoville told him and signed the order for the goods.

All of the articles of jewelry listed and described in the order were shipped by plaintiff to defendant on October 1, 1929, with the exception of a few items totaling in price $16.75, which were not then in stock, but were shipped in January, 1930. Defendant received the shipment of October 1, 1929, at his place of business, a drug store in St. Louis county, within a few days thereafter. The showcase was shipped separately and was received by defendant about the same time as the jewelry. Upon receipt of the merchandise early in October, 1929, defendant called Mr. Scoville on the telephone in accordance with the latter's instructions, and informed him the goods had arrived. Mr. Scoville thereupon went to defendant's drug store, unpacked the goods, checked them against the invoice which defendant had received, and put them in the display showcase. Defendant was present when Mr. Scoville started to put the articles in the showcase, but left his store before this task was completed. Before leaving, defendant signed a card acknowledging receipt of the goods and agreeing to pay in four equal installments, as provided in the order. Upon his return to the store a few hours later on the same day, Mr. Scoville was gone. Defendant testified he then discovered that the jewelry was not the same type and character as that which had been displayed to him by sample at the time he signed the order; that the jewelry "was not like the samples at all." Being asked on cross-examination wherein the merchandise he received from plaintiff differed from the samples displayed by Mr. Scoville, defendant said they were of a "different quality" and "cheaper appearing." Defendant further testified: "I found that there was not a piece in there that he had as a sample." When asked how he determined the quality of the samples displayed by Mr. Scoville, defendant answered, "Mr. Scoville told me they were gold and silver," and, "I took Mr. Scoville's word for it."

On further cross-examination defendant was asked how he determined that the merchandise he received was different in quality from the samples which had been displayed to him by Mr. Scoville. He answered: "It hasn't the appearance." He testified that he did not know the quality of Mr. Scoville's merchandise, as to whether they were gold filled, gold plate, or sterling silver, or what they were: that he only knew what Mr. Scoville had said.

Defendant testified that after returning to his store on the day that Mr. Scoville placed the jewelry in the showcase, he immediately tried to get Mr. Scoville on the telephone by calling the number which Mr. Scoville had given him, but was not successful; that he called that number at least a half dozen times; that the lady who answered the telephone said she would have Mr. Scoville call defendant, but that Mr. Scoville never did call him thereafter.

He further testified that he was unable to sell any of the jewelry although he kept it on display in his store from the time it was received in October, until about the first...