115 Mo. App. 382 | Mo. Ct. App. | 1905
— The parties to this action are both incorporated companies, doing business in the city of St. Louis. The plaintiff manufactures mining candles and the defendant machinery of different kinds. In May, 1899, the plaintiff gave the defendant an order to manufacture ten candle machines, to be used in making candles. Each of the machines was to mold 360 candles at a time. The plaintiff had been using machines which were manufactured by a concern in Cincinnati, Ohio. They contained molds for 96 candles, or about one-fourth of the capacity of the machines ordered of the defendant. Tt appears tlie Cincinnati machine was patented, but the defendant said it could manufacture machines like it by making some slight alterations, which would prevent an infringement of the patents. Eight of the machines were manufactured and delivered to the plaintiff and paid for in due course of business. The cost of the eight was $2,280, or $285 each. The testimony for the plaintiff is that these machines, instead of being according to contract, were so defective in construction as to be useless and worthless. The petition says defendant agreed to furnish machines which would manufacture candles weighing six to the pound, and that this would require a longer mold than the machines plaintiff was using; that
The instructions requested by the defendant on this phase of the case, except a peremptory one for a verdict in its favor, were given, and we think were fair. The jury were advised that plaintiff by receiving, using and paying for the machines, created a presumption that it accepted them and thereby precluded itself from recovering in the present action. We understand that charge to mean there was, from the facts stated, a rebuttable legal presumption of acceptance, which threw the burden of proof on the plaintiff to establish that it had not in fact accepted the machines. This is apparent from the concluding paragraph of the charge, wherein the jury were informed that the burden of proving non-acceptance was on the plaintiff. The jury were further told that it was plaintiff’s duty to examine the machines within a reasonable time after they were delivered to ascertain if they conformed to the contract, and if found not to conform, to notify the defendant; and unless plaintiff inspected the machines and rejected the same for non-compliance with the contract within a reasonable time, considering the nature and character of the
Respondent raised the point that the court erred in receiving parol testimony to supplement the written contract between the parties regarding the machines. The contract, so far as it was written, was in two letters. In one, dated May 3, 1899, the defendant stated that it confirmed its verbal quotations of $285 for the machines intended to mold 360 candles at one setting, and $250 for the smaller machines of the same capacity; workmanship and material to be first-class in every respect. The other letter was addressed to the defendant by the plaintiff May 5, 1899, and in it plaintiff agreed to what was said in defendant’s letter of May 3d, with the qualification that the price of the larger machines was to be $265, if defendant could make them for that price. There was no answer to this letter, although one was requested. The letters do not purport to be a complete expression of the terms of the contract. They con
The testimony for the defendant corroborated that for the plaintiff in regard to some of the alleged imperfections of the machines, but tended to exonerate defendant from blame for them. It was admitted the sides of the pans on them were about a quarter of an inch lower than the pans on the old molds in use in plaintiff’s factory, and that this shallowness of the pans caused the ends of the candles to cool so rapidly there were airholes in the ends, in consequence of which about an inch had to be cut off the candles before they were marketable. It was in testimony that Tower, ' plaintiff's president, was informed that the pans on the new machines would be shallower than those on the old ones, and Tower said he preferred them shallower. One of the defendant’s workmen testified the racks on the machines intended to hold the candles in place for cooling sagged, and thereby lowered the candles out of position. The sagging was due to the length of the machines, he said. Each mold was to manufacture 360 candles at a setting and had to be five feet long. This was too much of a span for the racks to. remain straight. The witness said he offered to brace the racks, but the brace would intercept the sweep of the knife used in cutting the candles and plaintiff’s foreman would not permit this. By agreement with the foreman the rack was finally braced in the center; and we gather from the testimony that it was thought this would obviate the sagging. Hayman (defendant’s workman) further testified that because of the greater size of the new machines, the flanges were necessarily smaller than
A verdict for plaintiff was set aside on the ground that the first instruction granted at plaintiff’s request was erroneous in two respects: first, in requiring the jury to find defendant agreed to construct candle machines to be like, not only the machines in use in plaintiff’s factory but a cut or picture of a machine manufactured by Ho-man & Company of Cincinnati, which cut had been shown to defendant’s manager Fritsch by Tower in negotiating the contract; that this was error because the petition alleged the machines were to he built like those in use in plaintiff’s factory, without saying anything about the cut; second, that the instruction likewise authorized a recovery in case the machines in controversy had certain defects, or differences from those in use in plaintiff’s factory, and defendant promised to remedy the faults; that recovery on this ground was allowed without regard to the question of whether the machines were made according to the contract between the parties or not. It is true that the instruction in question authorized a verdict for plaintiff on a finding by the jury that the defendant had agreed to manufacture machines like the cut shown defendant by plaintiff, and like the candle machines then in use in plaintiff’s factory. It is true, too, that the petition did not mention the cut of the machines manufactured by Homan & Company, but alleged the new machines were to be of the same construction as those in use by plaintiff, except that the molds were
It is apparent from the testimony for the defendant that the new candle molds, because of their size, had to be different from the old ones in other respects than those agreed on between Fritsch and Tower in the first place; at least, that is the theory of the defense and the testimony tends to establish it. For instance, it was said that the flanges at the bottom of the molds had to be narrower than the old flanges; and this was one of the causes why water seeped in and wet the candle wicks. It is also in proof that the racks of the new machines sagged on account of the long span of five feet over which they stretched; whereas the racks of the old molds, which were shorter, remained level. Now, there is no evidence whatever in the record from which we can determine whether the cut of the Homan machine was conformed to in making the new ones; or in what respect, if any, the machine shown in the Homan cut differed from the old machine in plaintiff’s factory. If it was unlike those in use in the factory, it is obvious
The order for new trial is affirmed and the cause remanded.