Murmann v. Wissler

116 Mo. App. 397 | Mo. Ct. App. | 1906

BLAND, P. J.,

(after stating the facts). — The only error assigned by defendant is the giving of instruction No. 3, and the refusal of the court to give the following instruction (not numbered) :

“3. The court instructs the jury that plaintiffs cannot recover against defendant for a failure to furnish the sheet steel boxes on or before January 6, 1903, if the jury believe that defendant made and entered into an agreement with plaintiffs that he would so furnish said boxes at said time if the jury further find that plaintiffs waived said condition and accepted said boxes after January 6,1903, and used them in their business from April 4, 1903, until January, 1904, and had alterations and repairs made upon them.

“The jury are instructed if you find for the plaintiffs on their cause of action in fixing the amount to be awarded them, you should consider the following elements :

“1. The delay, if any, of defendant in delivering the boxes beyond the time within which he agreed to- deliver them (if you find from the evidence that he did agree to deliver them within a specified time) and failed to do SO'. You will allow plaintiffs for the loss in profits to plaintiffs on sales of candy, if any during the period between the dates of agreed delivery, and actual delivery occasioned by the delay in delivering said boxes (provided you further find from the evidence that the boxes in question were of a kind not to be had or obtained by plaintiffs, except by special order, involving several months to manufacture-and deliver) provided you do not find that plaintiff did not waive such delay.

“The court instructs the jury that plaintiffs cannot recover against defendant for a failure to furnish the sheet steel boxes on or before January 6,1903, if the jury believe that defendant made and entered into an agreement with plaintiffs that he would so furnish said boxes at said time, if the jury further find that plaintiffs -accepted said boxes after January 6, 1903, and used them in their business from April 4,1903, until January, 1904, and had alterations and repairs made upon them.”

The instruction given submitted to the jury to find from the evidence whether or not the plaintiff waived the time in which the boxes were to be manufactured; the one refused moved the court to declare as a matter of law that the acceptance of the boxes by plaintiffs, after the date on which they were to be delivered, was a waiver of performance within the contract period and that no damages could be recovered on account of the delay in the delivery of the boxes. The controversy then, is whether the waiver of the time in which the boxes were to be ' delivered under the contract, was a question of law to be passed on by the court or a question of fact to be determined by the jury. Whether or not there was a waiver is ordinarily a question of intention and therefore a question of fact, unless the alleged waiver depends upon the interpretation of a writing; where it does so depend, it is, of course, a question of law, if the writing is unambiguous. [Lee v. Hassett, 39 Mo. App. 67.]

In 7 Am. & Eng. Ency-. of Law, p. 154, the law is stated as folloAvs: “By accepting work that is finished after the time agreed upon, or in a different way from that contracted for, and by assenting to such default, he waives strict performance and forfeits all remedies but damages .for the faulty workmanship and for his own consequent loss, and the right to deduction for any defectiveness in the work.”

“Waiver,” says Bishop, “is where one in possession of any right, whether confered by law or by contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right or of his intention to rely upon ft; thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterwards.” [Bishop on Contracts (1887), sec. 792.]

In Fairbanks, Morse & Co. v. Baskett, 98 Mo. App. 53, 71 S. W. 1113, citing Stiepel v. Life Assn., 55 Mo. App. 224, the court said “Waiver involves the notion of an intention entertained by the holder of some right to abandon or relinquish instead of insisting on the right.”

In Warner v. Crane, 50 Mich. 300, cited in Dailey v. Kennedy, 64 Mich. 208, it is said: “Waiver is a voluntary act. . . . But that action is in no sense voluntary which a party cannot decline to take except at the peril of liberty of life or property.”

In West v. Platt, 127 Mass. 367, 372, it is said that waiver depends altogether on the facts of the matter to which it pertains.

The evidence relied upon to establish a waiver, in the case at bar all came from one of the.plaintiffs (Murmann) and of course plaintiffs are bound by this evidence, which shows that they had a contract to put the-automatic boxes in three theaters; that they only had on hand enough of such boxes to supply one of the three theaters, and contracted with defendant to manufacture fifteen hundred other boxes to be delivered in sixty days; that after the expiration of the sixty days, defendant had not made any of the boxes and was repeatedly urged to “hurry them up,” but that he did not even commence to make them until more than a month after the time for their delivery had expired, and thereafter they were accepted, from time to time, as manufactured, until thirteen hundred and sixty-seven had been made and delivered. The evidence also shows that plaintiffs paid four hundred dollars on the contract price of the boxes, in advance; and Murmann testified that the boxes could not be procured elsewhere and that plaintiffs were compelh ed to take them from defendant whenever they could get them to keep their contract with the theater companies. On this evidence it seems to us that it is a grave question of doubt whether or not there was any evidence of a waiver of the damages accrued from the non-delivery of the boxes in the time stipulated. Plaintiffs had paid more than one-half the contract price for the boxes and were in a situation that almost compelled them to accept the boxes as they were manufactured. The acceptance of goods or machinery after the expiration of the time in which they were to be delivered is but prima facie evidence of waiver and is therefore a question for the jury. [Merrimack Mfg. Co. v. Quintard, 107 Mass. 127.]

The general rule of damages in the purchase and sale of personal property, where the seller fails to deliver within the time agreed upon, is the difference between the contract price and the market price at the time and place of delivery; but if the goods are bought for a specific purpose known to the vendor, or where the thing sold is to be made by the vendor to be used for a particular purpose and cannot be had elsewhere, or where the purchase price is paid in advance, the rule does not apply, and the buyer ought to receive full and just compensation if he suffers loss by default of the other party and is not himself in fault, and he does not waive his right to such recovery by accepting the goods after the time agreed upon for their delivery. [Redlands Orange Growers Association v. Gorman, 76 Mo. App. 184, approved by the Supreme Court on certification to said court (161 Mo. 203, 61 S. W. 820; s. c., 54 L. R. A. 718); Ramsey v. Tully, 12 Ill. App. 463; Van-Winkle & Co. v. Wilkins, 81 Ga. l. c. 104.]

We think that if there was any substantial evidence tending to prove a waiver, it was clearly a question for the jury, and affirm the judgment.

All concur.