Travers Co. v. Goldman

Citation255 S.W. 923
Decision Date06 November 1923
Docket NumberNo. 19704.,19704.
PartiesTRAVERS CO v. GOLDMAN.
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

"Not to be officially published." "

Action by the Travers Company against Louis Goldman. Judgment for plaintiff allowing defendant's counterclaim, and plaintiff appeals. Affirmed.

Woods & Schwartz of St. Louis, for appellant.

Edward W. Foristel and O. J. Mudd, both of St. Louis, for respondent.

SUTTON, C.

Plaintiff founds his action upon four promissory notes dated July 29, 1920, made by the defendant for principal sums aggregating $3,500. The plaintiff at the times mentioned herein was engaged in the manufacture and sale of ladies' shoes at Cincinnati, Ohio. In the fall of 1919 the plaintiff received from defendant an order for shoes, and upon such order sold defendant several lots of shoes at and for prices aggregating approximately the total sum of $33,500. The defendant was engaged in both the retail and wholesale trade in the city of St. Louis, and the shoes in question were purchased by defendant for his retail and wholesale trade, of which fact the plaintiff was aware at the time of the purchase. The shoes, packed in cases or boxes, were delivered to defendant in St. Louis in February, 1920. For a part of the purchase price of the shoes defendant gave plaintiff trade acceptances payable at stated periods during the spring and summer, 1920. These trade acceptances as they fell due were taken up by promissory notes made by defendant to plaintiff. All these promissory notes were afterwards paid off by defendant except the notes sued on, which were given for the trade acceptance last falling due. The acceptances were given pursuant to the original contract of sale. The notes were given pursuant to an agreement between the parties made on May 28th when the first acceptance fell due. The acceptances when given were indorsed and banked by the plaintiff. As they fell due plaintiff advanced the defendant the money with which to take them up, and notes were given for the money so advanced, and so the notes in suit were made.

Defendant answered, setting up a counterclaim for damages for breach of the implied warranty of the merchantability of the shoes, and the fitness thereof for the purpose for which they were designed and sold.

It was well proven that two lots of the shoes—one lot of patent leather pumps and one lot of black kid pumps—were unmerchantable and worthless. It was shown that these shoes were too small in the throat— too short from the tongue to the back of the shoe—so that a shoe which was otherwise of a correct size would not receive the foot on account of the small throat, and if the shoe was forced onto the foot it fit so tight in the throat that it would cut the foot so that the wearer could not stand it. The shoes were purchased for the summer trade. The defectiveness of the shoes was such that it could not be discovered by observation or examination merely, but was only disclosed by trying the shoes on the feet of customers in the effort to dispose of the shoes in the retail trade. Defendant endeavored to dispose of the shoes, both at retail and wholesale. The shoes sold by him at wholesale came back to him late in the season, and the purchase price was refunded. On September 3, 1920, the defendant having become convinced that these two lots of shoes were unmerchantable by reason of the defectiveness mentioned, wrote plaintiff concerning their defective condition, offered to return them, and asked that the amount of the purchase price be credited upon the notes in suit. Plaintiff declined to accept the shoes, but offered to relast them if defendant would return them for that purpose. Defendant thereupon returned the shoes to the plaintiff, but wrote plaintiff that a relasting of the shoes was not desired, and that the shoes would not be accepted though relasted. The plaintiff, however, relasted the shoes, and on October 11th reshipped them to defendant, who declined to receive them.

The evidence tended to show that the relasting of the shoes could not remedy their defectiveness, that relasting is merely a process of stretching the shoes, which could only give temporary relief, as the shoes would in a short time resume their former shape, so that the only effect of relasting would be to injure the shoes by the stretching process, and the defendant's evidence showed that, notwithstanding the relasting of the shoes, they were nevertheless unmerchantable and worthless. The shoes returned to plaintiff consisted of 267 pairs of patent leather pumps and 159 pairs of black kid pumps, the purchase price of which was $3,127.40.

The jury found for the plaintiff for the full amount of the notes sued on, with interest, aggregating the total sum of $3,684.87, and found for the defendant upon his counterclaim, awarding him damages in the sum of $3,127.40, and the court gave judgment for plaintiff for $557.47, the difference between the two amounts awarded by the jury to the respective parties. The plaintiff appeals. The plaintiff assigns as error here the refusal of ...

To continue reading

Request your trial
5 cases
  • The Belt Seed Co. v. Mitchelhill Seed Co., 19776.
    • United States
    • Court of Appeal of Missouri (US)
    • 16 juin 1941
    ...as partial performance and claim reimbursement from the seller for the loss sustained in consequence of the breach. Travers Co. v. Goldman, 255 S.W. 923, 924; International Shoe Co. v. Lipschitz, 72 S.W. (2d) 122, 125; Phelps Manufacturing Co. v. Burgert, 115 S.W. (2d) 107; Simrall v. Ameri......
  • Belt Seed Co. v. Mitchelhill Seed Co.
    • United States
    • Court of Appeals of Kansas
    • 16 juin 1941
    ...And this, even though the purchaser retains the thing sold with knowledge that it does not fulfill the warranty or agreement. Travers v. Goldman, 255 S.W. 923, 924; International Shoe Co. v. Lipschitz, 72 S.W.2d 125; Redlands Orange Growers' Association v. Gorman, 161 Mo. 203, 208, 9, 61 S.......
  • International Shoe Co. v. Lipschitz, 22907.
    • United States
    • Court of Appeal of Missouri (US)
    • 5 juin 1934
    ...to be made whole if the goods turn out after delivery to be of inferior merit. Fairbanks, Morse & Co. v. Baskett, supra; Travers Co. v. Goldman (Mo. App.) 255 S. W. 923. The order of the circuit court sustaining defendant's motion to set aside the involuntary nonsuit should therefore be aff......
  • Mudd v. Morris
    • United States
    • Court of Appeal of Missouri (US)
    • 6 novembre 1923
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT