OPINION
NIXON, P. J.
The
petition in this case (omitting caption and signatures) is as
follows:
"Plaintiff
states that it is and at all times hereinafter mentioned was
a corporation duly organized and existing under and by virtue
of the laws of the State of Missouri.
"That
defendant is justly and truly indebted to the plaintiff in
the sum of
two hundred and sixty-four dollars ($ 264.00), being the
reasonable and agreed price of goods, wares and merchandise
sold and delivered by said plaintiff to the defendant during
the month of May, 1907, at his special instance and request,
full particulars of which will appear in the account herewith
filed and marked 'Exhibit A.'
"That
the annexed itemized account is just, true and correct and
the same is due and remains payable; that all just and lawful
offsets, payments and credits have been thereon allowed and
that there is now unpaid and owing on said account, after
allowing all just credits, deductions and offsets, the said
sum of two hundred and sixty-four dollars, which accrued and
became payable October 1, 1907.
"Wherefore
plaintiff prays judgment against defendant for the sum of $
264.00 with interest thereon at the legal rate of six per
cent., from the first day of October, 1907, for costs herein
to be taxed and all proper relief."
"Exhibit
A," attached to the foregoing petition, is an itemized
account of the goods alleged to have been purchased by the
defendant.
To the
petition, the defendant filed the following amended answer:
1.
"Comes
now the defendant and for amended answer to plaintiff's
petition denies each and every allegation in said petition
contained, and further answering this defendant says that on
or about the day of , 1907, defendant gave a verbal order to
J. W. Sheppard, traveling salesman for plaintiff, for a bill
of shoes amounting in price to $ 360.00, which shoes were to
be shipped to defendant by plaintiff and the bill therefor
was, by the terms of the agreement of purchase, to be dated
July 1, 1907, and due in ninety days thereafter; that
Sheppard representing the plaintiff, in order to induce the
defendant to make such order and purchase such shoes, on
behalf of the plaintiff, represented, warranted and stated to
the defendant that the shoes handled by him for plaintiff and
sold by plaintiff, and the shoes to be shipped to defendant
on such order were of first-class quality, made of good
leather for the style and price, were well put together,
would wear well, that a guaranty of good quality went with
every shoe to be delivered on the order, that the shoes were
as good as or better than the shoes of the same and
similar style and price sold by the Hamilton-Brown Shoe
Company, whose shoes were well and favorably known in the
community where defendant had his store, and as good as or
better than other shoes of the same style and price sold in
that community; and said Sheppard on behalf of the plaintiff,
at said time, further agreed as part of the contract of sale
that plaintiff would warrant all of the shoes shipped on said
order to be as above represented and in order to introduce
the line of shoes mentioned in the order into that community,
the plaintiff would at the next trip of the said Sheppard,
which was to be about six months from the date above
mentioned, take up all the shoes ordered and received by the
defendant from the plaintiff and remaining unsold, provided
the said shoes were not as above warranted, or were not of
the quality as above represented by said
Sheppard, or were not such as to give satisfaction to
defendant and defendant's customers.
"Defendant
further says that he relied upon said statements, warranties
and agreements and was induced thereby to give the order as
above stated, and paid plaintiff one hundred dollars on
account thereof, but that the plaintiff did not ship to the
defendant shoes of the kind or quality ordered, but did ship
a bill of shoes similar in number, size and price, which
shoes so shipped and delivered to the defendant were of
inferior quality, made of poor and rotten leather, or
imitation leather, were not well put together, but would tear
and rip and go to pieces with ordinary wear of a few hours,
and at most a few days, were not as good as the shoes of
similar price and style sold in that community by
Hamilton-Brown Shoe Company, but were in fact worthless and
unmerchantable.
"Defendant
further says that neither said traveling salesman nor anyone
else representing plaintiff came to defendant's place of
business in about six months, or at any other time; that
defendant on discovering the kind and quality of the shoes
shipped to him as aforesaid, notified the plaintiff and
offered to return to plaintiff all the shoes shipped to him
as aforesaid and remaining unsold, and plaintiff refused to
accept the same; that defendant now has on hand ready to
deliver to the plaintiff a quantity of shoes shipped to him
as aforesaid, amounting in price, by the invoice thereof, to
two hundred and sixty-eight dollars, and is ready and willing
at all times to deliver same to the plaintiff.
2.
"Defendant
for further answer and defense herein says that on or about
the day , 1907, defendant gave a verbal order to J. W
Sheppard, traveling salesman for plaintiff, for a bill of
shoes amounting in price to $ 360.00, which shoes were to be
shipped to defendant by plaintiff and the
bill therefor was, by the terms of the agreement to purchase,
to be dated July 1, 1907, and due in ninety days thereafter;
that said Sheppard, who was agent and traveling salesman for
plaintiff, in order to induce the defendant to make such
order and purchase such shoes, on behalf of plaintiff,
represented, warranted and stated to the defendant that the
shoes handled by him for plaintiff, and sold by plaintiff,
and the shoes to be shipped to defendant on such order, were
of first-class quality, made of good leather for the style
and price, were well put together, would wear well, that a
warranty of quality went with every shoe to be delivered on
the order, that said shoes were as good as or better than the
shoes of the same and similar style and price sold by the
Hamilton-Brown Shoe Company, whose shoes were well and
favorably known in the community where the defendant had his
store, and as good as or better than other shoes of the same
style and price sold in that community.
"Defendant
further says that he relied upon said statements, warranties
and agreements, and was induced thereby to give the order as
above stated, but that plaintiff did not ship to the
defendant shoes of the kind or quality ordered, but did ship
to the defendant a bill of shoes similar in number, size and
price; which shoes so shipped and delivered to the defendant
by the plaintiff were of inferior quality, made of...
