Thurnauer v. Gates

• Decision Date: 02 February 1926
• Docket Number: No. 18990.,18990.
• Citation: 280 S.W. 63
• Parties: THURNAUER v. GATES.
• Court: Missouri Court of Appeals

280 S.W. 63

THURNAUER v. GATES.

No. 18990.

St. Louis Court of Appeals. Missouri.

February 2, 1926.

Appeal from St. Louis Circuit Court; M. Hartman, Judge.

"Not to be officially published."

Action by J. C. Thurnauer, doing business as J. C. Thurnauer & Co., against Julius Gates, doing business as the Western Raincoat Company. Judgment for defendant. From an order granting a new trial, defendant appeals. Reversed and remanded, with directions.

Taylor R. Young and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for appellant.

Arthur V. Lashly, Ben F. Turner, and Sievers & Hartmann, all of St. Louis, for respondent.

DAUES, P. J.

Plaintiff brought suit for $4,031, on an account for goods sold and delivered. There was a trial before the court and jury, resulting in a verdict for the defendant. The court made an order granting a new trial, from which order defendant has duly appealed.

The petition is in the usual form. The answer admits that defendant agreed to purchase certain goods from plaintiff on September 14, 1920, intended to be described in the order, but denies the other allegations of the petition. It is then alleged that plaintiff sought to make the sale by sample; that the material was to be used for the manufacture of raincoats, as was understood between the parties, and that the sale was made upon the understanding that the goods were equal to the samples and fit for manufacturing raincoats; that the goods were to be delivered to the Duratex Company, a rubberizing firm, at Newark, N. J., for that purpose. It is then alleged that plaintiff failed to carry out the contract, in that instead of delivering the amount of goods ordered, a substantially larger amount was delivered; that the goods delivered were greatly inferior in quality, and, instead of being "firsts," same were "seconds," and also that there was a difference in the color and shade from the samples. It is further alleged that defendant, upon learning of plaintiff's failure to carry out his contract, promptly declined and refused to accept the goods, and offered to return same, but that plaintiff declined, and now declines to take back the goods.

The reply to the answer and counterclaim is a general denial, and contains the averments that the custom of the trade, which defendant well knew, was that the shipment was to be of the approximate quantities of the materials mentioned, and that this deviation was allowed.

The record discloses that on September 14, 1920, defendant gave plaintiff an order for certain cloth material. At the time, plaintiff's salesman made out a memorandum which, being introduced as an exhibit, showed the amount of material and the price to be paid. The same was itemized and a notation made that the goods were to be delivered to the Duratex Company; near where plaintiff's business was located. The rubberizing was to be done for the defendant; there being no contractual relations between plaintiff and the Duratex Company. The goods were delivered to the Duratex Company on September 27, 1920, and, according to the testimony of witnesses from that company, this firm at once contended that the materials were defective, and, by letter dated September 28th, notified both the plaintiff and the defendant of that fact. The letter stated that the goods were of a very poor grade, were very weak and tender both in warp and filler, that an inspection showed that the cloth contained an unusually large number of seams and many holes and tears, and it was advised that the lot was so poor that they would not undertake to coat same, except at the customer's risk. There were other objections made to the quality of the cloth.

On October 13, 1920, the defendant having been advised of the condition of the material, sent to plaintiff a copy of the letter from the Duratex Company of September 28th, and advised plaintiff that defendant had instructed the Duratex Company to return the entire shipment. On October 15th plaintiff wrote defendant that they would take the matter up with the Duratex Company, and that that firm no doubt would withdraw its objection to the character of the material. This letter further stated that the Duratex Company offered to return the shipment on October 15th, but that plaintiff had refused to accept same. On October 18th, the Duratex Company again wrote defendant regarding the fabric, and stated that they had offered to return same to plaintiff, and that plaintiff had refused to accept the goods, and this letter advised defendant that the plaintiff (Mr. Thurnauer) had made a "very interesting discussion" of the character of the goods, and that the Duratex Company now concluded that it probably was too critical in as report of the fabric, but said there was no question but what the fabric was weak, due to its construction, and not to its manufacture, and that for that reason their first report that the fabric was tender was incorrect. In this letter, however, defendant was advised that it would be well to rubberize only one piece of the goods in order to determine whether it would be possible to rubberize the whole lot without jeopardy, and stated farther that after they had rubberized the one piece they would notify defendant from the trial piece, as to how the fabric would serve the purposes of being rubberized.

On October 21st, the defendant wrote the Duratex Company, in reply to the letter just referred to, that, if the fabric was as described by them, then the defendant could not and would not accept same. The Duratex Company was authorized to rubberize one piece of the goods, providing same did not have a white selvage, and that the one piece so rubberized was to be sent to the defendant by express, and, if the fabric was found to be satisfactory, defendant would wire the Duratex Company with regard to the balance.

The above letter was transmitted by the Duratex Company to the plaintiff. On October 28th plaintiff wrote defendant, which in effect stated that the goods were as ordered, and that the plaintiff positively refused to take same back.

There was much oral evidence introduced, pro and con, as to whether the fabric was according to the sample and whether it was suitable for the purposes for which it was bought. These disputed facts were resolved by the jury, which returned a verdict for the defendant.

The court granted a new...