109 Mo. App. 179 | Mo. Ct. App. | 1904
This suit is to recover part payment made by plaintiff on the purchase price of wagon axles sold and delivered by defendant to plain
On February 16, 1903, plaintiff wrote to defendant as follows:
“We have just wired you as follows: ‘Will take two thousand axles. Have written in full. Answer.’ In explanation, Mr. Green wrote us a few days ago, Feb. 11th, that you would let us have 2,000 4x5 axles one year old, at 50c. each, and all guaranteed first-class, above price, f. o. b. Atlanta. We would ask that you ship one large carload of these axles, say 1,000 pieces, to Fish Bros. Mfg. Co., Clinton, Iowa, at lowest obtainable freight rates sending us B-L and invoice. We will give shipping instructions for the balance of the lot at an early date.”
To this defendant made the following answer:
“Sis: Your lette regarding wagon axels would sate, I told Mr. Green I could spare about 2,000 wagon axels 4x5 and would take 50 cents a piece F. O. B. Atlanta hoever Bought them stand my inspection and I would garrantee not to put in a stick that would not ■ make a wagon axel but as far as garrenteed them first-class that was not named and I would not think of such a thing as that would give all kinds of room for tro ble I think they are good axels and in fact I know it I sold Joel Youny ‘ ?’ Wagon Co. 3 car loads and Biggs & G. 1 car load and they called them good what they got now if you want to stand my inspection I will load out a car. Reptfloy, W. B. Holbeck.”
To this, plaintiff replied by telegram February 16, 1903, as follows:
“Will take two thousand axles. Have written in full. Answer.”
The letter is as follows:
*183 . “Feb. 17,1903.
“Replying to tlie latter part of your letter 16th inst. We request that you go ahead and ship the carload to Clinton, Iowa, as requested in our letter of yesterday. Our understanding of the offer made to Mr. Green is the same as stated in your letter, that is, that every axle was to be first class — that is, merchantable goods and suitable in every way for mailing axles. Would like very much to have you load a full half of the quantity if possible, as we want to make two cars of the entire lot of axles, so if you fall short of the 1,000 axles in the first car the balance would have to be put into two cars, and there would hardly be sufficient for that purpose.”
Defendant answered on February 20th, which answer, after stating it would take several days to get a car for the shipment, is as follows:
“. . . Now once more I want- to say I shall inspect the car of axels my self and shall handle every one myself before they are loaded in car I shall not aim to a stick in car that wont make a axel in the first place I received nearly all the axels I have bought and have been veiy Particular to get what I called good ones and of corse after axels have been Housed a good while as these axels are and pretty well seasoned than will be some to throw ought I shall try to please you folks but I want ¡this understood now that there will be no kicking and throwing out axels at other end of road and I am to have to have 50 cnt. pr. axel f. o. b. Atlanta for all I put in car and no- kicking from what the agent said would bee some 3 or 4 days before he could get mee a car and this woll give you planty of time to answer if not satisfacty.”
■ However, two days prior to this last letter, plaintiff wrote defendant the following letter:
“Feb. 18, 1903.
“Referring again to the carload order we sent you a day or two ago we are taking some chances in mak*184 ing the shipment. It is very possible our customer will object to some of the axles, and, of course, that would make a loss for us. We request, therefore, that you be as particular as possible iu inspecting the axles and do not ship any that you are not sure of. With this suggestion, we will leave the matter in your, hands. ’ ’
And again, on February 21, plaintiff wrote defendant as follows:
“Answering yours of the twentieth inst. go ahead and ship these axles as quickly as you can get the cars. Make shipment in our name, using the inclosed tickets. We will do what we can for you in getting the car.”
The axles were shipped as directed and plaintiff paid defendant for them. The residue were not received. Other correspondence passed between the parties both before and after the shipment of the axles, but enough has been given to show the contract relied on for recovery.
The plaintiff offered to further prove in addition to the payment made to the defendant, that a great proportion of the axles shipped to Fish Bros, differed materially in size from 4x5- but were only from 3 and 1-2x4 inches; that they were shaky and worm eaten; and that they were made of the hearts of the timber, were crooked and not fit for the purpose intended. This evidence was excluded on objection made by defendant. Other evidence offered in support of plaintiff’s case was also' excluded. Whereupon, plaintiff took a nonsuit, which the court, on motion, refused to set aside. From all of which plaintiff appealed.
It is contended by plaintiff that where personal property is purchased for a particular purpose known to the vendor, and the buyer does not inspect the goods but trusts to the judgment and skill of the seller, there is an implied warranty that the goods will .be reasonably fit for that purpose. And such is the law. Ault
But it must be conceded that where there is an express contract of sale, nothing is implied — it is the terms of the contract itself that govern. La the letters which constitute the contract here, the defendant expressly provided against any warranty of size or quality of the axles sold. He stipulated that he was to be the inspector, to which plaintiff agreed — and that such inspection should be final and conclusive. As the contract was conclusive and binding upon both parties alike, the inspection made by defendant could be set aside only upon a showing, “that he acted corruptly or in a grossly partial way or in misapprehension or ignorance of the facts.” McCormick v. St. Louis, 166 Mo. 315; Williams v. Railway, 153 Mo. 487. There was no such evidence in the case and none such tendered. The effect of the contract under consideration was that defendant’s inspection was not to be challenged for any cause, except for fraud, which the law would not permit. That defendant might have contracted against every lawful contingency affecting the size and quality of the axles sold, we do not think controvertible. That he did reserve to himself the right to determine those matters, and that his decision should not be questioned by plaintiff is unquestionable. The plaintiff, therefore, in proving the contract, proved himself out of court.
We find no error in the trial. Cause affirmed.
