Elgin Jewelry Co. v. Withaup & Co., 118 Mo. App. 126

Elgin Jewelry Co. v. Withaup & Co.

118 Mo. App. 126 | Mo. Ct. App. | 1906

GOODE, J.

(after stating the facts). — The main defense is the failure to give notice of the defective quality of the jewelry within two days after its receipt. In our judgment that clause of the written order cannot be interpreted to mean that if the goods were not of the quality ordered, notice must be given within the stated time. The quantities of the different articles ordered were sent. Neither was there “a variance from the order.” The variance was from the representations made by the agent. The natural interpretation of the clause is that if there was a shortage in the articles shipped or some of the articles sent were different from what had been ordered, notice must be given in two days; for instance, if scarf pins were shipped to defendants in place of shirt studs ordered by them. It is not to be supposed the parties contemplated that low grade jewelry might be substituted for high grade, thereby calling for a complaint from defendants. In other words, we think the contract did not intend that defendant should immediately notify plaintiffs if the former discovered, on receipt of the jewelry, that a *132fraud had been practiced. The paragraph of the contract invoked by plaintiffs was intended to shut off reclamations on account of a shortage in the shipment or a discrepancy between the articles shipped and those ordered, unless the claims were preferred within the stipulated time. It ought not to be held to preclude a defense based on a rescission of the agreement because it was fraudulently induced. [Main v. Dearing, 84 S. W. (Ark.) 640.] We are cited to Pratt v. Mercantile Co., 111 Mo. App. 96, 85 S. W. 134, as supporting plaintiffs’ contention. In that action the defense relied on was the breach of an express warranty, instead of a rescission for fraud. That is, the defense was rested on the agreement and not on its alleged invalidity. The purchaser of the goods had kept them in stock forty or fifty days and sold portions of them, before giving notice of their failure to comply with the warranty, though the contract required notice in five days. The failure of the Mercantile Company to perform the contract, was fatal to a claim for relief predicated on a breach of its terms by the other party and probably a delay of that length would have been fatal to an attempt to rescind.

Error is assigned because the court admitted testimony regarding the fraudulent representations of the salesman prior to the execution of the written contract. This testimony is said to vary the terms of the written order for the goods. The order says nothing about the quality of the jewelry and perhaps might be regarded as an incomplete memorandum of the agreement, so that proof of representations by the salesman regarding the quality and grade of the goods hardly would vary it. HoAvever, Ave do not understand the law to exclude oral evidence that the purchase of personal property was induced by fraudulent representations regarding its quality in actions for the price, even if there was a written order or bill of sale. In an action on the contract, or some warranty of it, for damages for a breach, *133this might be the rule. But where the sale was rescinded for fraud and the rescission is interposed as a defense to an action for the price, testimony is received in proof of the fraud. [Leibke v. Methudy, 14 Mo. App. 65; Leicher v. Keeny, 48 Mo. App. 394; Sachleben v. Heintze, 117 Mo. 520, 24 S. W. 54; Thomas v. Beebe, 25 N. Y. 244; Mayer v. Dean, 115 N. Y. 556, 5 L. R. A. 540; 14 Am. and Eng. Ency. Law, 199; 1 Elliott, Evidence, sec. 593.] We put our decision on that ground. •

Those instructions requested by plaintiffs which the court refused, were drawn on the theory that defendants were estopped to interpose a defense, because of their failure to give notice of the defective quality of the goods within two days after they were received. They were properly refused. Appropriate instructions were given submitting the grounds of recovery on which plaintiffs had-the right to rely.

The judgment is affirmed.

All concur.