155 Mo. App. 95 | Mo. Ct. App. | 1911
(after stating the facts). — 1. Defendant asserts that the court erred in refusing to allow defendant’s expert witness, who had made a chemical analysis of one barrel, to testify as to the contents of it. Reviewal of the court’s action involves an inquiry into the defendant’s right to show upon the trial, under the circumstances of this case, first, that the eighteen barrels delivered contained an article different in kind from that called for by the contract, and second, that the thirty-two barrels sold in New York did not contain the same article described in the contracts. For undoubtedly the proof offered had a tendency to prove not only that the eighteen barrels shipped contained a mere imitation of “gum tragacanth powdered,” but that the thirty-two barrels sold in New York likewise did; for plaintiff’s evidence disclosed that the contents of all the fifty barrels were exactly the same. The admissibility of the evidence as proof of the contents of the eighteen barrels should in turn be considered, first, as to whether such proof is proper in order to wholly defeat plaintiff’s right of recovery, and second, whether it was proper in support of defendant’s counterclaim. Whether it was admissible for the purpose of wholly
And the second question can also be answered in the affirmative. In Morrison v. Leiser, 73 Mo. App. 95, 98, the court held that a vendee who agrees to purchase goods of a certain quality to be delivered in installments (as in the case here), will be allowed to revoke the order for future shipments because the prior shipments did not meet the requirements of the contract of sale. The language used by the court in the opinion is peculiarly applicable to the case at bar. “It seems to us that the agreement to sell, as in the case at bar, is one executory contract; that before plaintiffs can be allowed to recover they must show a substantial compliance with the terms of said contract; and if, during the delivery of the goods, the vendor makes substantial breach of any of its conditions as to the quality of goods, then the vendee may rescind the contract as to such future deliveries and decline to take any more goods even though such latter instalment may, on inspection, be found equal in quality to the terms of the contract.” There is no pretense that the defendant knew at the
The present case can hardly be said to involve the doctrine of rescission at all. It is rather a case where the purchaser claims to be excused from further performance because of the prior breach on the part of the seller. Rescission involves restoring the status quo of the parties and that is impossible in the present case, as it was in Morrison v. Leiser, supra, and in Grafeman Dairy Co. v. St. Louis Dairy Co., 96 Mo. App. 495, 70 S. W. 390, where the right to refuse later instalments was upheld in cases like the present. This brings us to the correlated question of whether defendant’s basing its refusal to continue with the contract upon an untenable ground estopped it to set up a proper ground when sued for its alleged breach of contract. It has been held in New York and Michigan that where a buyer objects to a tender on specified' grounds all others are waived,
We conclude that the evidence excluded should have been admitted in evidence, as tending to prove a fact going to wholly defeat plaintiff’s right to recover.
In our judgment the evidence was also admissible under defendant’s counterclaim. It is immaterial that defendant sold the eighteen barrels at an increased price, as plaintiff suggests. [Brown v. Emerson, 66 Mo. App. 63.]
The evidence excluded was also admissible for the purpose of determining whether the alleged re-sale in New York was a proper criterion of the market value of the thirty-two barrels. We find no difficulty in holding that in order that such a sale should have the effect
For the error noted the judgment of the court in favor of the plaintiff upon its alleged causes of action and upon the counterclaim is reversed and the cause remanded.