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 |
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.
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:
On September 7, 1896, the...
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