Simrall v. American Multigraph Sales Co.

• Decision Date: 02 June 1913
• Citation: 158 S.W. 437
• Parties: SIMRALL v. AMERICAN MULTIGRAPH SALES CO.
• Court: Missouri Court of Appeals

158 S.W. 437

SIMRALL v. AMERICAN MULTIGRAPH SALES CO.

Kansas City Court of Appeals. Missouri.

June 2, 1913.

Rehearing Denied June 30, 1913.

1. EVIDENCE (§ 451) — PAROL EVIDENCE — EXPLAINING WRITTEN INSTRUMENT.

Where parties make a written contract, it is presumed to express their entire agreement; but where the contract itself shows the contrary, or where it contains terms of uncertain meaning, parol evidence is proper, not to contradict or vary it, but to explain its ambiguities and to supply terms which it shows must have been intended to be a part of the contract.

2. EVIDENCE (§ 461) — PAROL EVIDENCE — CONTRACT OF SALE.

Where a written order for a machine of the seller's manufacture was silent as to whether it was to be new and in first-class condition or in a worn and damaged condition, and where the buyer had no opportunity of inspection, parol evidence was admissible on that question.

3. JUSTICES OF THE PEACE (§ 91) — PLEADING — CONSTRUCTION.

The greatest liberality should be observed in construing statements filed in justice's court; and where the statement discloses the nature of the transaction, and there can be no doubt but that the judgment entered thereon would afford a complete bar to any subsequent action for the same cause, it will be deemed sufficient.

4. JUSTICES OF THE PEACE (§ 91) — PLEADING — BUYER'S RESCISSION OF CONTRACT OF SALE.

A statement, in an action begun in a justice's court, that plaintiff ordered from defendant a multigraph type machine for $300, a stand and operator's stool for $25, and paid on account $125, that defendant failed and refused to deliver the machine and merchandise, and refused plaintiff's demand for the return of the money paid, in substance, called on defendant to meet the charge of a contract rescinded by the buyer on the ground that the machine was not delivered and was sufficient to support a cause of action.

5. SALES (§ 116) — REMEDIES OF BUYER — RESCISSION.

Where the seller in professed full performance of the contract of sale delivered a machine not meeting the contract requirements,

he was guilty of a breach entitling the buyer to rescind.

6. SALES (§ 404) — REMEDIES OF BUYER — DAMAGES FOR BREACH OF CONTRACT.

Where the seller in professed full performance of the contract of sale delivered a machine not meeting the contract requirements, he was guilty of a breach entitling the buyer to accept the machine as partial performance and claim reimbursement for the loss sustained by the breach.

7. SALES (§ 127) — BUYER'S OFFER TO RESCIND — CONDITIONS.

An offer to rescind, to be immediately effective, must be unequivocal and unconditional, and a buyer's statement that he would not rescind if the seller fully performed its contract, but that if the seller failed within a reasonable time he would stand on his right to rescind, was conditional and not immediately effective.

8. SALES (§ 121) — BUYER'S RIGHT TO RESCIND — WAIVER.

A buyer may waive his right of rescission on breach of the seller's contract, or may waive it conditionally, and on nonperformance of the condition may then rescind or resort to an action for damages.

9. SALES (§ 421) — INSTRUCTIONS — REFUSAL OF OFFER TO PERFORM.

In an action to recover the amount paid on a machine ordered but not delivered, where the seller, counterclaiming for the balance of the selling price, showed that, during the period in which plaintiff had consented to accept a full performance of the contract, its offer of full performance was rejected, an instruction that if, upon complaint by the buyer that it was not the machine he ordered, the seller offered to give him another machine in its place, which he refused, plaintiff could not recover should have been given.

Appeal from Circuit Court, Jackson County; O. H. Hill, Special Judge.

Action by Ernest G. Simrall against the American Multigraph Sales Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Ellis, Cook & Barnett, of Kansas City, for appellant. Harry L. Jacobs and J. F. Aylward, both of Kansas City, for respondent.

JOHNSON, J.

This action was begun in a justice court on the following statement: "Plaintiff for his cause of action against defendant states: That defendant is a corporation duly organized and existing under and by virtue of the laws of Ohio. That on or about the 27th day of September, 1910, the plaintiff ordered from the defendant one Gammeter Multigraph Elite Type Machine at and for the sum of $300, one tubing stand and one operator's stool at and for the sum of $25, for which plaintiff paid the defendant on account of said purchase the sum of $125. That the defendant has failed and refuses to deliver said machine, tubing stand, and stool so ordered to the plaintiff. That this plaintiff has demanded the return of the $125 so paid to the defendant, but payment has been refused: Wherefore, by reason of the foregoing premises, plaintiff prays for a judgment against the defendant in the sum of $125 and for his costs in this behalf expended." Defendant answered admitting the sale of the machine, tubing stand, and operator's stool at the price of $325 and the payment of $125 on the purchase price and denying the other allegations of the statement. Defendant also filed a counterclaim in which it alleged the sale and delivery of the merchandise to plaintiff, the payment of $125 on the purchase price, and the execution by plaintiff of his promissory note for $200 in payment of the remainder of the purchase price of the machine, and prayed for judgment on that note. Plaintiff prevailed at the trial in the justice court and again in the circuit court where the cause was tried without the aid of a jury and...