VoOrhis v. Smith

• Decision Date: 08 November 1881
• Citation: 11 Mo.App. 108
• Court: Missouri Court of Appeals
• Parties: CORNELIUS VOORHIS, Plaintiff in Error, v. SMITH, BEGGS & COMPANY'S MANUFACTURING WORKS, Defendant in Error.

11 Mo.App. 108

CORNELIUS VOORHIS, Plaintiff in Error,

v.SMITH, BEGGS & COMPANY'S MANUFACTURING WORKS, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Nov. 8, 1881.

A misrepresentation of the seller as to a matter not the subject of the sale, affords no ground for a rescission by the buyer.

ERROR to the St. Louis Circuit Court, BOYLE, J.

Affirmed.

GIVEN CAMPBELL, for the plaintiff in error.

LEE & CHANDLER, for the defendant in error.

THOMPSON, J., delivered the opinion of the court.

When this cause was called for trial in the circuit court the learned judge refused to permit the plaintiff to introduce evidence in support of the petition, on the ground that it stated no cause of action. The propriety of this ruling is the only question we have to consider in this case. The petition is as follows: “Plaintiff states that the defendant is a body corporate duly incorporated under the laws of this state; that plaintiff, being unskilled and unacquainted with the manufacture of bricks by machinery, and unacquainted with the merits and capacity and usefulness of the different machines for manufacturing bricks, but desirous of manufacturing brick by means of a certain patent brick machine, known and called the Clark patent, described in letters patent issued by the Patent Office of the United States, No. 125,272, and desirous of true and correct information in relation to the character, usefulness, and merit and capacity of said Clark's patent machine, applied to the defendant, whose officers were men acquainted with the merits, capacity, and usefulness of said Clark Patent Brick Machine, and who were well skilled and informed in all matters pertaining to the construction and use of such machines, and who held themselves out to the world as experts in such matters, being manufacturers of brick machines, and asked the officers and agents of defendant for their knowledge and information in relation to said machine, and whether they could and would construct for plaintiff a machine after the said Clark patent, which would be useful and valuable in the manufacture of brick; that thereupon the defendant, by its officers and agents, did state and represent to plaintiff that the defendant could and would, in a reasonable time, build such a machine for him, and represented to him that the same should mould and turn out fifty thousand tempered brick per day, and should be equal to, if not superior to, any brick machine ever constructed or used in the city of St. Louis; that plaintiff, being unskilled in such matters, which required practical and mechanical knowledge to a correct understanding of the merits of such machine, of which knowledge plaintiff was not in any manner possessed, relying wholly upon the representations of defendant, informed defendant that he would, in a reasonable time, contract with it to build for him such machine at the price and sum stated by defendant to be its cost, to wit, $6,000. And thereupon the defendant, by its officers and agents, represented to plaintiff that he would need an engine and boiler to run the said machine, and that they had a second-hand engine and boiler which would suit plaintiff's purpose, and that he had better secure the same while he had an opportunity, and exhibited said engine and boiler to him; and thereupon they induced him to contract for the purchase of the same upon the following terms, to-wit: the price of the same to be $3,000, plaintiff to pay down $400, and said engine and boiler to be delivered upon the payment of the balance of said price at any time during six months from the twenty-third day of October, 1875; but if the said engine and boiler were not taken by plaintiff within said six months, he was to forfeit all right and title to the said $400 paid on account; that, accordingly, relying wholly upon the representations of defendant as aforesaid as to the value of said machine and as to its performances, and as to the necessity of an engine and boiler to run it as aforesaid represented, the plaintiff did pay the said $400 to defendant as a part payment upon said engine and boiler for the uses aforesaid; that shortly after, defendant by its officers and duly authorized agents, acting for and on behalf of defendant, came to plaintiff and informed him that the representations formerly made by the defendant's agents for defendant, in relation to its ability and power to build a machine after said Clark's patent for plaintiff, was untrue, and they then represented and informed plaintiff that they could not build a machine after said patent, which would be of any value or use, or which would perform successfully.

“That thereupon plaintiff, who had paid the said $400 to defendants as aforesaid, solely upon the faith of the representations of defendant, as aforesaid, in relation to the said brick machine, when he ascertained that said representations were not true, refused to carry out the contract for the...