Rico v. Peters

• Decision Date: 02 May 1916
• Docket Number: No. 14307.,14307.
• Citation: 185 S.W. 752
• Parties: RICO v. PETERS.
• Court: Missouri Court of Appeals

185 S.W. 752

RICO v. PETERS.

No. 14307.

St. Louis Court of Appeals. Missouri.

May 2, 1916.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Elver Rico, doing business as the American Standard Jewelry Company, against A. W. Peters. From a judgment for defendant, plaintiff appeals. Affirmed.

Henry B. Davis, Chas. Erd, and Loren E. Massey, all of St. Louis, for appellant. Edward W. Foristel, of St. Louis, for respondent.

ALLEN, J.

This is an action begun before a justice of the peace, founded upon three acceptances, each for the sum of $30, payable to the order of American Standard Jewelry Company, under which name plaintiff did business, and accepted by defendant by indorsement across the face thereof. On appeal from the justice of the peace the cause was tried de novo in the circuit court, before the court without a jury, resulting in a judgment for the defendant, from which plaintiff prosecutes this appeal.

Plaintiff offered the acceptances in evidence, and called defendant as plaintiff's witness. Defendant, who is a druggist, admitted signing the acceptances, stating that they were given for jewelry purchased by him, but that he did not receive the goods contracted for. At this juncture plaintiff objected to the introduction of any evidence tending to show that the jewelry delivered to defendant was not such as he bought, for the reason that defendant had filed no pleading "setting up a partial failure of consideration." The court announced that it would receive the evidence subject to objection. Defendant identified an "order blank" signed by him, containing a description of the jewelry ordered and the terms of the contract under which it was sold. Among other things it was therein provided that, if the purchaser would keep the goods on display and report to the seller monthly, the latter would repurchase goods remaining unsold at the end of the year at the prices paid therefor by the purchaser. For the most part the goods mentioned therein are described as being "solid gold," "rolled gold," "gold filled," etc. Defendant produced in court the jewelry delivered to him by plaintiff, and the court examined it. Defendant testified that he received none of the goods mentioned in the order; that the "cheap jewelry" which he did receive was utterly unsalable and of no value whatsoever; that upon testing some of it with acid, in the customary way, it was entirely consumed thereby; that he displayed it for sale, and while it remained in his store some articles thereof were sold, but that in each instance the purchaser returned the article, and defendant refunded the purchase price; that he...