Appeal
from St. Louis City Circuit Court.--Hon. Daniel G. Taylor
Judge.
REVERSED
AND REMANDED.
STATEMENT.--Defendant
is a Massachusetts corporation and has its chief office and
place of business in Orange in said State. During the period
of the Louisiana Purchase Exposition in 1904, defendant had
the Grout automobile on exhibition on the Exposition grounds.
Plaintiff, a resident of the city of St. Louis, in June
1904, bought a Grout automobile of defendant, paying seven
hundred dollars therefor. In regard to the purchase
plaintiff's evidence tends to show that in a conversation
with Charles Grout, president and manager of defendant
company, Grout said that his car was "simple in
construction, easily run and operated by a lady, no manual
labor, not as much as a gasoline car. I told him I didn't
want that much labor; I made a point on that. He said
'not as much labor as a gasoline car,' which I tried
and could not do--he said not as much labor, no manual labor
'you can keep it in your own stable with perfect ease,
everything is reliable.'
"Q.
Well, did he say anything about the machine--about making the
machine satisfactory to you? A. Yes, he said, 'I will
guarantee that the machine will do all this, that it will be
satisfactory.' I said, 'Is that what you will
do?" He said, 'I will make that machine satisfactory
to you.' "
Plaintiff
testified a machine was sent out to her residence (4561
Morgan street) and a demonstrator furnished to teach her how
to handle and operate it; that she objected to the machine
for several reasons, and particularly, on account of an air
pump attachment, which had to be worked by hand power, the
labor required to work the pump being too heavy for her. At
the suggestion of defendant, plaintiff was furnished another
machine, having an automatic air pump attachment, which
plaintiff testified defendant represented to her would work
of itself and never require the use of hand power. The
automobile was operated by steam power, generated by the
consumption of gasoline, and the pump was also operated by
steam through a valve on the boiler, so if there was no steam
in the boiler and air was required, hand power had to be used
to work the pump. Plaintiff testified she was not strong
enough to work the pump and was compelled to keep the machine
in a garage where she could have the air tank filled.
Plaintiff testified she wished to keep the machine in her own
stable at her home, but on account of being unable to pump it
up she was forced to keep it in a garage. Plaintiff's
evidence is that she wanted a machine she could handle and
operate herself and so informed Charles Grout, president and
superintendent of defendant company, and she testified that
Grout said ladies operated defendant's machines; that any
lady could operate one of them; that the machine was
peculiarly fitted to be operated by ladies. In regard to the
second machine furnished plaintiff, her testimony, in part,
is as follows:
"Q.
What did you do with this car; did you operate it, attempt to
operate it? A. I had it put in my stable as the other car I
have described; but at the time I went to use it, to start it
myself I found the same pumping to do on this car as the
first car and I said, 'This is not any better than the
other system,' and he said this was a new car from the
factory, it would take time as in all machinery and let the
machinery get tested. I was perfectly willing to do that and
I said 'all right, we will try it again.' After that,
every time we started the same trouble; I took it to the
garage house of the--Automobile Co., where I could get
compressed air.
"Q.
Were you able at any time to start this car, take it out of
the stable, without that pump? A. No, sir, never at any time;
the second car had to have hand pumping. I tried it just the
same and I could not do it. I took it to the garage where
they had compressed air.
"Q.
What became of that car? A. I used that quite a while, giving
them opportunity to repair it; they said it was lacking a
valve you could very easily operate, or could fix the car. I
wanted a car, I wanted them to make it satisfactory for me,
but they could not do it. So I finally sent it back to them.
"Q.
Did they ever do that? A. No.
"Q.
Well, what finally was done with the second car? A. I turned
it over to their company at the World's Fair
grounds."
The
following is Charles Grout's version of the transaction:
"Int.
5. Did you at any time sell her an automobile and if so state
fully the transaction? Ans. I did sell her one at the
World's Fair along about the first of June, she coming to
our space and asking to be shown the cars, which I did and
explained them to her thoroughly. She asked for a
demonstration and as we had no demonstrating car I told her
that we expected one and as soon as it came would be glad to
demonstrate it. She called no less than a dozen times on
different days said she had been out and tried two other
makes and they were not what she wanted. Finally one day I
took from the space a car as a demonstrator and I think
within a day or two she came again and saw it outside of the
building and asked if she could have a demonstration, and she
insisted that I personally give this demonstration which I
agreed to do that same evening, called at her house or her
sister's house with the car. I first took her sister who
directed the way to a particular place in the park, which she
claimed the two previous cars which she rode in got stuck on
the hill. After going up this hill she asked if I supposed
she could do it herself. I immediately changed seats and she
operated the car up this same hill and around through the
park for at least half an hour. We returned to her home and I
took her sister, Miss Helen Walker, whom I gave practically
the same demonstration and she expressed herself at least a
dozen times how pleased she was with the car and on arriving
home with her she asked her sister, and also her sister's
husband, what they thought. They immediately told her that
they didn't see how she could do better and she
immediately said to me, 'All right, Mr. Grout, order me
one by telegraph at once,' which I immediately did within
twenty minutes.
"Int.
6. What words did she use, if you remember, if not state in
substance what she said when she expressed herself as pleased
with the car? Ans. Her expressions were as follows: That it
was the quietest little car she ever rode in, and it was so
easy to handle, and it was so cute, and there was no odor,
which she appreciated. In fact, her expressions of the car
were more than good in every respect.
"Int.
7. Have you stated in substance all the conversation you had
with Miss Walker when the contract of sale was made? Ans.
Well, practically all, yes.
"Int.
9. Did she operate the car at the time referred to in giving
her the demonstration. Ans. She did.
"Int.
10. It appears that after the delivery of a car to Miss
Walker, an exchange of cars was made, and you sent or
delivered to her another one. What was the reason of making
this exchange? Ans. After the first car arrived she expressed
herself as disappointed in the color, but admitted that it
was her fault for not specifying, and as she had talked with
some of her friends in regard to a different fuel system, she
asked if she could not have this system changed on this first
car. I immediately telegraphed for a few parts to make this
change, but in the meantime she had made plans to go on a
summer vacation for two or three months and as there were no
roads for automobiling, she said, and as she was to ride
horseback, that she didn't care to take the automobile
with her and she voluntarily made me a proposition as
follows: To take that first car and order her another one to
be of the color she wanted and with this change of fuel
system and have it there about the first of September, that
it would be very satisfactory, and as we had a market for her
first car it was a good proposition for us and we accepted
it."
There
is no evidence showing, or tending to show bad faith on
plaintiff's part in refusing to keep the machine.
Plaintiff
moved the court to instruct the jury as follows:
"1.
The court instructs the jury that, if you believe and find
from the evidence that the defendant, in effecting a sale of
the automobile in controversy to the plaintiff, agreed that
said car should be perfectly satisfactory to the plaintiff,
that thereby it is meant not that said car should have been
or ought to have been perfectly satisfactory to the
plaintiff, but that, in fact, the same was perfectly
satisfactory to her."
The
court refused to grant this instruction and gave the
following for defendant:
"2.
The court instructs the jury that plaintiff was not the sole
judge of the satisfactory character of the car sold to her by
defendant, and if they believe from the evidence that said
car was, or would have been satisfactory to a reasonable
person for the purpose for which it was sold, they will find
a verdict for defendant."
The
verdict was for defendant. A timely motion for new trial was
filed which the court overruled, whereupon defendant
appealed.
Judgment reversed and cause remanded.
George
L. Edwards and Edward D'Arcy for appellant.
(1)
Where a contract provides for the sale of an article, which
is to be satisfactory to the vendee, it must be satisfactory
to him and not merely such an article as ought to be
satisfactory or as would be satisfactory to other persons.
McCormick v. Finch, 100 Mo.App. 641, distinguishing
Pope v. Best, 14 Mo.App. 502; Thompson v
Dickerson, 68 Mo.App. 535; Blaine v. Knapp & Co., 140 Mo. 241; Berthold v. St. Louis...
