Roth v. Continental Wire Co.

• Decision Date: 29 April 1902
• Citation: 68 S.W. 594,94 Mo. App. 236
• Parties: ROTH v. CONTINENTAL WIRE CO.
• Court: Missouri Court of Appeals

68 S.W. 594

94 Mo. App. 236

ROTH v. CONTINENTAL WIRE CO.

Court of Appeals at St. Louis, Missouri.

April 29, 1902.

SALES — SALE BY SAMPLE — BREACH OF WARRANTY — ACTION — PARTIES — ASSIGNMENT OF CLAIM — EVIDENCE — BURDEN OF PROOF — ADMISSIBILITY — SUFFICIENCY.

1. The fact that an assignment of a claim by a corporation, which is executed by its president and attested by its secretary, bears the corporation seal, is prima facie evidence that the assignment is the act of the corporation.

2. An absolute assignment of a claim, though without consideration, is sufficient to authorize action therein by the assignee, though the practice act requires action to be instituted by the real party in interest.

3. Plaintiff, who was required to deliver certain machinery at a certain place by a certain time, notified the purchaser at such time that the machines were ready for delivery, and inclosed a bill, but stated that the machinery would be retained at plaintiff's shops, for the accommodation of the purchaser, till the latter was ready for the machinery, if it was so desired. The machinery was delivered, at the request of the purchaser, after the expiration of the time for delivery, but no claim for rebate for failure to deliver at the agreed time was made. Held, in an action for the purchase price, to show a constructive delivery within the period fixed in the contract.

4. Where the superintendent of a company, purchasing certain machines, inspects the machines in the shops of the seller before delivery, and afterwards testifies, in an action for the purchase price, that they were defective, but is not cross-examined, his declarations, made during the inspection, which contradict his testimony, are admissible as original evidence on behalf of the seller.

5. A contract of sale stated that it was the sale of an option to the purchaser to purchase a number of a certain machine at a certain price, all the details for the sale and delivery of the machines being specified. Thereafter a supplemental contract extended the time in which to purchase the machinery, and declared that it was to give the parties time to test the machines, and if the machine being tested proved satisfactory the option should be closed by the purchaser giving a certain notice, which required the other machines to be as good as the machine which was tested. The option was closed by giving such notice. Held, that the contract contemplated a sale of the machines by sample.

6. On an appeal from a judgment rendered on the findings of a referee, in a case in which a compulsory reference is ordered, and in which the evidence is reported, the appellate court may review the evidence but the findings of the referee will be affirmed unless found to be the result of mistake or clearly against the weight of the evidence.

7. Where the petition, in an action for the price of machinery sold, alleges compliance with a contract requiring such machines to be as good or better, and work as well or better, than a sample machine, and defendant pleads a breach of such warranty in that the machines furnished were not as good, and did not work as well, as the sample machines, the burden is on the plaintiff to show that the machines were as good as the sample.

8. Evidence, in an action for the purchase price of machines sold by sample, that the machines sold were made according to the same pattern, from the same materials, in the same shop, and by the same men, is prima facie proof that the machines correspond to the sample.

9. When the purchaser of machines by sample repeatedly complains to the seller that the machines are not satisfactory, and both parties attempt to remedy the defects, the retention of the machines by the purchaser, and his failure to rescind the contract, do not raise an inference that the machines are satisfactory.

10. When the defendant alleges breach of warranty of machines sold by sample in an action for the purchase price, the burden of showing such breach of warranty is on the defendant, though the evidence shows that the machines were not satisfactory, and that the defendant failed to offer to return them.

Appeal from St. Louis circuit court; Franklin Ferris, Judge.

Action by Charles A. Roth against the Continental Wire Company. From a judgment for plaintiff, the defendant appeals. Reversed.

John A. Gilliam, for appellant. F. and Ed. L. Gottschalk, for respondent.

BLAND, P. J.

On September 1, 1896, the B. Roth Tool Company, a corporation doing business in the city of St. Louis, and the Continental Wire Company, a corporation doing business in Granite City, in the state of Illinois, entered into the following contract: "St. Louis, Mo., Sept. 1, 1896. For and in consideration of the sum of fifty dollars, to it in hand paid, the receipt of which is hereby acknowledged, and the further consideration of the agreements hereinafter stated, the B. Roth Tool Company hereby sells to the Continental Wire Company the option to purchase twenty-five wire nail machines designated as follows: 2 A machines, 3 B machines, 9 C machines, 9 D machines, 1 E machine, 1 F machine, of the kind and as described in the catalogue of the P. & B. Nail Machine Company, of St. Louis, a copy of which catalogue containing said description is hereto attached, and referred to as a part of this contract, so far as said description is concerned, at and for the price of nine thousand two hundred and fifty dollars, to be paid as hereinafter stated; all of said machines so sold by said B. Roth Tool Company to be double-headed, and to have all the improvements designed by Henry Fuchs, the said B. Roth Tool Company being the owner in its own right of the said P. & B. wire nail machine, and also of the improvements aforesaid. The said Continental Wire Company is to close this option on or before the 8th day of September, 1896, and notify the B. Roth Tool Company, in writing, to deliver said machines. Upon receipt of said notice the said B. Roth Tool Company shall deliver three of said machines to said Continental Wire Company, and shall not receive pay therefor until the whole of said twenty-five machines are delivered. That including the said three machines the said B. Roth Tool Company shall deliver eight machines within two weeks from the date of said notice to close this option, and the Continental Wire Company shall pay for the same as delivered. That said B. Roth Tool Company shall deliver, within six weeks from the date of notice, the remaining seventeen of said machines, and shall receive the said sum of nine thousand two hundred and fifty dollars ($9,250) for all of said twenty-five machines; but, in the event the said B. Roth Tool Company shall fail to deliver said machines within six weeks, then they shall only receive in all the sum of eight thousand five hundred dollars ($8,500). In consideration of the premises and the mutual agreements of the parties, the B. Roth Tool Company agrees to sell and deliver seventy-five additional machines on the order and at the option of the Continental Wire Company, and of the kinds they may order within one year after the delivery of the last of the twenty-five machines first herein mentioned, for which said Continental Wire Company is to pay at the same rates proportionately as is herein agreed to be paid by them for the said first twenty-five machines upon the delivery thereof. In consideration of the premises, and of the agreements herein, and in consideration that the B. Roth Tool Company will not sell to any person, corporation, or company, except the Continental Wire Company, any of said machines, the said last-named company will pay to said B. Roth Tool Company the sum of one cent a keg for each and every keg of nails manufactured by said machines during the option of said Continental Wire Company; it being understood that, if said Continental Wire Company shall fail to pay said royalty of one cent a keg by the tenth of each month for the nails manufactured in the preceding month, then said B. Roth Tool Company may sell machines to any one who may wish to buy. It is further understood that, if any patents are granted by the United States on said machine or improvements, that the said Continental Wire Company shall have the exclusive right to use said machine in the United States under said patents so long as it shall pay said royalty of one cent a keg for all nails manufactured by said machines, as hereinbefore stated. It is further understood that the B. Roth Tool Company guaranties that neither said P. & B. nail machines nor said improvements by Henry Fuchs infringe on any patents held by others, and that the said Continental Wire Company shall have the exclusive use of all patents that said B. Roth Tool Company has or may have under this agreement, or that may be hereafter taken out by said H. Fuchs; and said B. Roth Tool Company guaranties that all of said machines shall be perfect in all their parts, and will do the work for which they are intended to the satisfaction of the said Continental Wire Company. It is further agreed that, in the event the said B. Roth Tool Company shall fail to carry out this contract if the same is demanded by the Continental Wire Company, then it shall pay to the said Continental Wire Company the sum of five thousand dollars, as liquidated and ascertained damages, and not as a penalty; but this shall not apply to the failure to deliver the machines within the time limited herein if the same are delivered within a reasonable time thereafter. In witness whereof the said B. Roth Tool Company has caused this contract to be signed by its president, William Boefer, and attested by its secretary, Edward B. Roth, under the seal of said company, and the said Continental Wire Company has caused this contract to be signed by its president, D. R. Wolfe, and attested by its secretary, William E. Ware, under the seal of said company on the 1st day of September, 1896."

On September 7, 1896, the...