116 Mo. App. 499 | Mo. Ct. App. | 1906
Omitting caption, the petition is as follows:
“Plaintiff for cause of action states, that during all the times hereinafter mentioned, the defendants were engaged in the furniture business as copartners under the firm name and style of Neece Brothers.
“That on the — day of October, 1903, the plaintiff
“That in accordance with said contract thereafter, on the--day of November, 1903, the defendants delivered to plaintiff the number of combination springs and mattresses agreed but in derogation and violation of said contract, delivered to plaintiff unfit, unsuitable and utterly inferior and unserviceable set of combination springs and mattresses than those agreed to be sold and delivered and as a result of the unfit and inferior condition and grade of said mattresses and springs they have worn out in the short term of six months or thereabout and will now have -to be replaced with new ones, whereas had they been of the kind that they should have been would have stood service for twenty years or more.
“That at the time of delivery of said mattresses and springs, the plaintiff was unfamiliar with such articles of merchandise and did not know the kind and grade of mattresses and springs he was receiving from the defendants and being so ignorant of such information, he accepted said goods and paid the entire purchase price agreed on, to-wit, four hundred and twenty dollars that thereafter by use and service to which said mattresses and springs furnished.
“That said springs and mattresses were and are entirely worthless and valueless to this plaintiff and he has
The answer denied, specifically, that defendants sold the mattresses to-the plaintiff, and denied, generally, all other allegations of the petition. Further answering, defendants alleged:
“That the only connection they had with the purchase of such mattresses by he plaintiff was in the sole capacity of agents. That at the special instance and request of the plaintiff they permitted him to order said mattresses in their names for a fixed commission and charge, less than Ordinary profit which they would have received for a purchase of said mattresses from them direct; that by introduction they brought the plaintiff face to face with the vendor of said mattresses and did not even know the kind of mattresses that he had ordered until their arrival in their car of furniture. That the defendants had advised the plaintiff to buy a different make of mattresses from those described in the petition, but after a personal negotiation with the vendor the plaintiff purchased said mattresses of his own volition and upon his own responsibility.
“Further answering defendants say that although they received a small commission in the transaction they were not the vendors of the mattresses described, but the same were purchased direct from, a wholesale furniture dealer in the city of St. Louis,, Missouri, and that said mattresses were delivered direct by said vendor to the plaintiff; that the plaintiff received, unboxed and set up the same in his hotel in Aurora, Missouri, and ever since said acceptance and receipt of said mattresses by the plaintiff the sainé have been constantly in use by the plaintiff in his hotel and said mattresses now, are and will long continue to be an attractive feature of said ho-stlery on account of the ease and comfort which they afford plaintiff’s guests.
“Further answering defendants deny that said mat
Defendants were partners engaged in the sale of furniture at retail, in the city of Aurora, Missouri. Plaintiff is the owner of the Bank .hotel, in said city, which he had leased to one Edwards. Plaintiff, desiring to furnish the hotel with twenty-eight box-spring mattresses, went to defendants with a view of buying them. Defendants did not have the mattresses in stock but informed the plaintiff that J. W. McCoy, a traveling salesman for furniture houses, in the city of St. Louis, wouid be along in a few days and arrangements could then be made to procure the mattresses. McCoy arrived in Aurora a short time thereafter and the mattresses were ordered through him, and in due time thereafter were shipped from the city of St. Louis, by the manufacturer, C.' J. Costuba, consigned and billed to the defendants. On their arrival and the receipt of Costuba’s invoice, the mattresses were delivered to plaintiff by defendants and installed by plaintiff in the hotel. Defendants turned the invoice over to plaintiff and he paid them the invoice price, plus five per cent as their commission, and the railroad freight charges.
The evidence in regard to the quality of the mattresses is conflicting, th'at of plaintiff tends to show they were of a very inferior quality, made of poor material and were almost worthless; that of defendants tends to show they were well and skillfully made of first-class material and were first-class mattresses. There is a
“I am one of the defendants in this case. I did not sell Mr. Haines any mattresses from my stock of goods. I didn’t have any contract with Mr. Haines; Mr. M'cCoy sold him the mattresses. Mr. McCoy is a traveling salesman for three or four St. Louis houses. Mr. Haines met
“Q. Where did McCoy take the order, from your store? A. I think so. We were to have five per cent on the furniture ordered. He ordered quite a bill of stuff aside from the mattresses at that time, dressers and tables and such things as that. They were shipped in a carload by themselves. Mr. Haines paid the freight when he paid the bill for the goods. I paid the agent and Mr. Haines paid me. I received five per cent commission on these goods. That was the amount under the contract we were to receive.”
J. W. McCoy testified as follows:
“I am working for the Furniture Manufacturers’ Association of St. Louis. I sold the mattresses in litigation. I made the contract with Mr. Haines at the Neece store. They told me to go and sell him the goods for the hotel and they would get a commission and so I sold Mr. Haines a carload of goods for the hotel, in their store. I did not know at the time what commission they had agreed on, I understood afterwards it was five per cent. I don’t remember who told me that. I don’t know exactly what was said, only at the time I remember the remark that was said, Mr. Neece said, ‘Go ahead and sell him the stuff and they would get a commission, and M'r. Haines made a remark joking and said, ‘I can beat Newt, out of the commission,’ in a joking way. I sold him a combination moss and hair box mattress. There was no warranty or guarantee made on the sale to Mr. Haines.
On cross-examination, witness stated: •
“The car was shipped to Neece Brothers, it had to
Witness1 also stated that he expected Neece Brothers to stand good for the sale made to Haines under the terms of the contract at five per cent.
The verdict was for the defendants. A timely motion for new trial was filed and overruled, Avhereupon plaintiff appealed.
Plaintiff’s instruction No1. 1, reads as follows:
“1. The court instructs the jury that if you believe from the evidence in this case that the defendants sold to the plaintiff the combination mattresses and springs in eAridence, and that at the time of such sale they represented that they were of a first-class quality and make and were suitable for use in a first-class hotel, and, if you further believe from the evidence, that such combination mattresses and springs were not of the quality and kind contracted to be delivered, but were of an inferior kind and quality and not suitable for use in a first-class hotel, and if you further believe from the evidence that such combination mattresses and springs Avere of less value owing to such inferior kind and quality, if any, then the contract price agreed to be paid therefor at the time of such sale, then the plaintiff would be entitled to recover in this action such difference in value, and your verdict should be for him.”
The court gave the following instructions for the defendants:
“1. The court instructs the jury, that if they believe from the evidence that defendants sold the mattresses in
“2. The court instructs you that you cannot find for plaintiff unless you believe from a preponderance of the evidence, that the defendants made an express contract to warrant the condition of the mattresses sold to the plaintiff. No recovery in this case is sought on an implied contract, and even though you may believe from the evidence that the mattresses were unfit for the purposes for which they were ordered, this will not authorize you to find a verdict for the plaintiff unless you further find from the evidence that the defendants agreed with plaintiff, that such mattresses were to be fit for such purpose, or unless they authorized some one in their name to make such contract for them.
“8. The court instructs you that while one selling personal property in his possession is presumed in law to warrant the fitness thereof for the purpose for which the same is purchased, yet this possession must be that of- the owner or one who- sells the property as his own, if then, that the jury shall believe from the evidence that the defendants, when the sale of tire mattresses was made to the plaintiff, sold the same as agents for Jacob Keiser, and that the plaintiff had full knowledge that they acted as such agents and not as principals, then your verdict should be for the defendants.”
The giving of each of these instructions is assigned as error.
In White v. Stelloh, 74 Wis. 435, an instruction containing the following language Avas approved, to-Avit: “Any assertion or averment by the seller to the purchaser during the negotiations to effect a sale, respecting the quality of the article or the efficiency of the property sold, will be regarded as a warranty, if relied upon by the purchaser in making the purchase.”
In Carter v. Black, 46 Mo. l. c. 385, Wagner, J., after quoting from Parsons on Contracts and Hilliard on Sales, on the subject of Avarranty and what representations are necessary to constitute a warranty, said: “It is sufficient if there be a representation of the state of the thing sold, or a direct, positive, unequivocal, and express affirmation of its quality and condition, being part of the consideration of the sale, and showing an
The petition alleges that defendants agreed that the combination mattresses “should and were to be of first-class style, make and pattern and suitable for a first-class hotel business and were to be of a first-class grade and condition, and the plaintiff thereupon agreed to pay a first-class price,” etc. The petition not only alleges that the mattresses were to be first-class and suitable for a first-class hotel, but further on it is stated that plaintiff was unfamiliar with such articles and did not know the grade of the goods. These statements in the petition show that defendants positively agreed that the mattresses were to be first-class and suitable for a first-class hotel, and that the plaintiff relied upon this undertaking in making the purchase! The petition, therefore, under the foregoing authorities, clearly counted on the breach of an express warranty of the grade and quality of the mattresses. The instruction is faulty in "that it fails to define what is meant by an express warranty, but we think this omission is cured by instruction No. 1, given for plaintiff, which based plaintiff’s right to recover on the fact that the defendants represented the mattresses to be of first-class quality and make, and suitable for use in .a first-class hotel. Bead together, the two instructions fairly submitted to the jury the issue, as to whether or not the mattresses Avere sold on an express warranty.
. • No reversible error appearing in the record, the judgment is affirmed.