*1 Realty Progressive Appellant, Company, Inc., Finance Respond doing Stempel, Theatre, as Strand Robert business (2d) ent. 95 S. W. 834. July Appeals. Opinion Court filed 1936.
St. Louis Rehearing July denied 1936. Hugh ap- <& D.
Sheridan, Robertson and MoGorkle for Sheridan pellant.
John Clancy Friday F. and Jesse for respondent. T.
SUTTON, dated on a note C. This action founded 23, $2703, payable monthly installments October being payable first November each, $225.25 installment given 1929. Sound Talk- the North American (cid:127) part for a Equipment Corporation, purchase Picture ing price Type Unit, M. con- Tone-O-Graph Reproducing of one D. Am- sisting pick ups, one Channel tables, of two turn two Double *4 Dynamic plifier, Speakers, Monitor Horn and Fader one two one North by American equipment, one Sound-on-Film sold the and Talking Equipment Corporation, and to the defend- Sound Picture 23, 1929, $3050, carrying price plus October for the ant on purchase charge per paid six cent. the time of the At defendant Talking Equipment American North Sound and Picture Cor- the due, including carry- a balance poration $500 cash. left the This $2703, promissory given, which the was On charge, of ing North February paid American 7, 1930, defendant to the Sound and Equipment Corporation the first installment of Talking Picture terms of promissory to the the $225.25, according which note fell sale, which 1929. The was a one, November conditional on contract, of even with by a written date the was evidenced North American Sound and by the Talking Picture note, executed the and defendant. On March Corporation 1, 1930, Equipment the contract of that sale promis- and notified the plaintiff by assigned plaintiff the to North American Sound had been sory not and Talking Equipment Corporation, Picture and the balance that due thereon $2447.75. was petition alleges The contract, the and and execution the note assignment of them plaintiff to North by American Sound
and Talking Equipment Corporation, Picture prays judgment and $2703, together with interest. pleads Defendant his answer breach of warranty, failure consideration, and rescission. The trial was had before court jury, without a and resulted judgment in a for the defendant. Plaintiff appeals. upon
The judgment insists a reversal of here ground judgment supported by is not evidence. In view of insistence, becomes necessary out to set testi-
mony in some detail.
Defendant testified in follows: substance as “I North live at Street, Second St. I operate Charles. is known what as the Strand Theatre in St. I signed Charles. the conditional sales contract and the note suit here. North American Pic- Talking The Sound and Equipment Corporation ture engineer had their install this here to equipment part about the latter of December, 1929. That is when they commenced the installation. The installation was under made supervision engineer and direction of the North American Corporation. completed was installment about week the first in February. After pictures the installation I showed on the screen with the sound on very unsatisfactory. film. was It The sound raspy, was indistinct, clear, jump not understandable. It would doing some times and in syncronize pic- it would not with the ture, is, when person open on the screen his mouth would talking, the sound would come afterwards or before. It was intelligible clear, neither nor understandable. never never was satisfactory. I After had operated machine and found just stated, I complaint be as I North American made a to the Corporation. February 10th, complaint About I wrote them a they never it. I complaint again remedied letter made on March 14th, again by April 29th, complained letter on but the defects never In im- my requested were remedied. letter I last parts my removal of all from mediate of the outfit theatre. The request my expense, went unheeded. I removed outfit at own my place payment and it is still stored at of business. The $225.25 first installment was made on which February 7, completed approved was about the the installation had been time *5 by engineer Corporation. North the of the American was That be- satisfactory.” I knew not fore that the machine was J. II. Bradford testified for in the substance fol- as lows: “I moving am picture salesman." I know the defendant picture and I his know show, the Strand in Theatre, St. Charles. 726 A was picture February, 1930.
I went to his theatre some time like sound was the It being sound was shown. The awful—terrible. whistling screechy, you had a of on radio. It what call static of the different characters voices of sound did not let the that out- picture It was not understandable to the audience. be audible connect one could not that aud so possibly of a word here there side screechy. radio, raspy on a was static like sentences. on the of the characters of the voices with the sound It interfered' It was indistinct.” screen. intro- testimony given by a of other witnesses number was
Like behalf defendant. duced on of implied of this warranty in the sale unquestionably was an
There which it made. was accomplish purpose that machine it would Creasy 804; 21 l. S. W. Leedy, v. 114 Mo. c. [Comings . 82 Hunter, v. 454; Aultman, Miller & Co. Gray, App. 88 v. Mo. Co., Ornamental Glass E. F. Kerwin 632; Skinner v. App. Mo. Ferguson v. 1011; Implement Co. W. App. 650, 103 77 Mo. S. 469; Dolph, W. Laumeier v. App. 300, 128 107 S. Parmer, Mo. 360; Milling & Elevator Co. App. 78, Lindsborg 130 S. W. 145 Mo. Eisenbarger 459; Wilhite App. 154, 174 Danzero, 189 Mo. S. W. v. v. Emerson-Brantingham Imp. v. (Mo. 159; Co. App.), 238 S. W. 1181; J. Co. v. Preslar England (Mo. App.), 186 W. B. Colt S. Layton, (Mo. Register Co. v. 1100; W. National Cash App.), 274 S. Machine 1091; Weighing App. 454, Columbia Mo. S. W. testimony Young (2d)W. And the (Mo. Co. 4 S. App.), 828.] clearly record, undisputed in the witnesses, of which stands warranty. shows undisputed evidence breach this This shows a which purpose only accomplish machine that failed so any purpose, made, worthless for shows that was was but Moreover, of consideration. an utter failure there was that warranty, de discovering breach of upon evidence shows rescinded machine and thus tendered a return of fendant do. clearly entitled to sale, which he contract following pro- upon put is chief reliance vision of the contract sale. “I admit assignment notice the intended this contract agree if assigned pay- contract and note be all shall be assignee
ments absolutely, hereby waiving made to rights all existing n'ow or my hereafter against you any favor de- to make fense, cross-complaint or counterclaim to any demand or action brought by assignee to payments recover this contract .under possession or and note to recover chattels, agreeing said I further my against you part that all claims or demands shall be inde- pendent assignee of any against action me.” against provision obviously public void This as policy, designed rights it is to settle advance substantive parties
727 under the contract and oust jurisdiction the courts of their to de termine rights. such It is law settled that parties cannot contract oust the jurisdiction. of courts their right a After has accrued, or obligation an has been incurred, party may rights waive his or neglect refuse and to them, enforce but is permissible him stipulate to in advance that in the event arising of in differences he deny future will right himself to the courts for their to.resort settlement. The has inhabitants, an State interest all and of its be, it is to its rights interest protected all of should enforced according jurisprudence to the provided. course it has always For that reason its open are wrongs, courts for the redress of person deprive no can by contract himself' in advance right Georgia to to them. Casualty v. (Mo.), resort Co. [Brucker (2d) 1088; Indemnity (Mo. S. W. v. Co. of America Goerss 276; App.), 3 S. (2d) Corp. W. l. San c. Securities Francisco Co., Phoenix Ariz. Motor 531.] plaintiff that it is agree suggestion "We unable to are to protected Three negotiable as of a instrument. purchaser an innocent unpaid past due and promissory suit were installments of Plaintiff knew this. letter plaintiff Its purchased at the time it. letter is true of March 1st shows. to so with install- $2447.75 started plaintiff stated that the balance says shows an extension that this March 1930. Plaintiff ment of installments, the Decémber so that payment time unable 23, 1930. We March are not become due until installment did willingness of than the anything more that this letter shows to see we are unaware payment, but so the time of plaintiff to extend past of a permitting the any rule of endorsee law purchasing negotiability after of the note restore the note to thus Moreover, course. in due it, purchaser as make himself a so time showing whatever that at is there no this ease existing defenses knowledge had the note no purchased thereto. judgment of the Circuit recommends Commissioner The affirmed. be Court adopted C., is opinion of foregoing PER CURIAM: The Sutton, Court judgment of the Circuit opinion of
as the court. McGullen, JJ., Becker Hostetler, J., P. accordingly affirmed. concur.