Lawson v. Williams Hardware Co.

Missouri Court of Appeals

Lawson v. Williams Hardware Co.

99 S.W. 814, 122 Mo. App. 484, 1907 Mo. App. LEXIS 39

DecidedFebruary 5, 1907

StatusPublished

This text of 99 S.W. 814 (Lawson v. Williams Hardware Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lawson v. Williams Hardware Co., 99 S.W. 814, 122 Mo. App. 484, 1907 Mo. App. LEXIS 39 (Mo. Ct. App. 1907).

Pincite

Opinion

GOODE, J.

(after stating the facts) —The instruction requested by plaintiffs and given at their instance, shows they tried the case on the theory that if they exercised reasonable diligence in having the necessary repairs made on the wheels and the. latter promptly returned to defendant, this constituted performance of their obligation. By giving the instruction the court, to that extent, adopted this theory; but the instructions [490]*490given for defendant are inconsistent with it. Moreover, the latter instructions lost sight of the guaranty and the other evidence in the case. The first one said that if the hind wheels of the wagon broke down under ordinary use and thereby became unfit for use, the verdict should be in defendant’s favor. This instruction is erroneous. Defendant had accepted the wagon long before, and its recourse on plaintiff depended either on a timely rescission of the contract of purchase, or on the warranty given by the latter. Defendant did not prove nor, indeed, assert a rescission because the wagon was unfit for use. Its letters show that after the wheels had broken, it desired to retain the vehicle and merely wanted the wheels made whole. This was a decision to abide by the contract, made after the facts which possibly warranted a rescission, were known. True, defendant tried to reship the vehicle to plaintiffs in the latter part of June; and if this effort could be treated as an election to rescind, and had occurred while rescission was yet permissible, it was made, not because the wagon was useless, but because of delay in returning- the wheels. Now if defendant had the right to rescind for delay, the question of whether or not plaintiffs were- guilty of unreasonable delay would arise. Hence the issue would be unreasonable delay, in any event. But our opinion is that, as defendant had decided theretofore to keep- the wagon and request repairs, it was bound to stand by this decision ; hence was compelled thereafter to look to the terms of the contract for redress. [Pratt v. Mfg. Co., 115 Wis. 648.] The terms are shown in the warranty; a document ignored on the trial by both sides, in some measure. The warranty expressly stated that plaintiffs would repair any wheel, axle or spring which gave way on account of defective workmanship or material, twelve months from the date of purchase. One condition of the warranty was that broken parts should be returned to plaintiffs in order that they might be presented to the [491]*491foreman of the factory and repaired. This meant, of course, if repair was possible; .otherwise they would be replaced. To defeat plaintiffs’ action merely because two wheels broke down, in the face of a warranty accepted by defendant as the measure of plaintiffs’ obligation and binding them to replace or repair the wheels*, would be to disregard the contract between the parties. The fourth instruction for defendant also erred in declaring that if the hind wheels broke down or became too weak, by reason of the spokes becoming loose, thus unfitting the wagon for use, then defendant had the. right to refuse to accept or pay for it. As said, defendant had already accepted the wagon and had returned the broken -wheels for replacement or repairs; thus abiding by the contract. Defendant’s correspondence as late as June 7th, was but an insistence on new wheels being sent or the first ones repaired and returned. The second instruction erred in laying stress, in its first clauses, on the fact that defendant had requested new wheels. That suggestion was made in defendant’s first letter, but in the second one written May 4th, defendant said, in substance, that the wheels had been returned to be repaired, if they could be. According to the theory on which the case was tried, the essential question was whether plaintiffs exercised reasonable diligence to have the wheels repaired and returned to defendant promptly or new ones sent in their place, if they could not be repaired. The evidence goes to show the delay was the fault of the railroad company, and that the repaired wheels were put in charge of said company and consigned to defendant at as early a date as possible. However, this issue was for the jury’s decision. A case in this court must be determined with reference to the theories on which it was tried below; but without passing on the question, we will say it looks like the real remedy of the defendant was by counterclaim for breach of the warranty. The jury was instructed erroneously; there[492]*492fore the judgment will be reversed and the cause remanded.

All concur.

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GOODE, J.

(after stating the facts) —The instruction requested by plaintiffs and given at their instance, shows they tried the case on the theory that if they exercised reasonable diligence in having the necessary repairs made on the wheels and the. latter promptly returned to defendant, this constituted performance of their obligation. By giving the instruction the court, to that extent, adopted this theory; but the instructions [490]*490given for defendant are inconsistent with it. Moreover, the latter instructions lost sight of the guaranty and the other evidence in the case. The first one said that if the hind wheels of the wagon broke down under ordinary use and thereby became unfit for use, the verdict should be in defendant’s favor. This instruction is erroneous. Defendant had accepted the wagon long before, and its recourse on plaintiff depended either on a timely rescission of the contract of purchase, or on the warranty given by the latter. Defendant did not prove nor, indeed, assert a rescission because the wagon was unfit for use. Its letters show that after the wheels had broken, it desired to retain the vehicle and merely wanted the wheels made whole. This was a decision to abide by the contract, made after the facts which possibly warranted a rescission, were known. True, defendant tried to reship the vehicle to plaintiffs in the latter part of June; and if this effort could be treated as an election to rescind, and had occurred while rescission was yet permissible, it was made, not because the wagon was useless, but because of delay in returning- the wheels. Now if defendant had the right to rescind for delay, the question of whether or not plaintiffs were- guilty of unreasonable delay would arise. Hence the issue would be unreasonable delay, in any event. But our opinion is that, as defendant had decided theretofore to keep- the wagon and request repairs, it was bound to stand by this decision ; hence was compelled thereafter to look to the terms of the contract for redress. [Pratt v. Mfg. Co., 115 Wis. 648.] The terms are shown in the warranty; a document ignored on the trial by both sides, in some measure. The warranty expressly stated that plaintiffs would repair any wheel, axle or spring which gave way on account of defective workmanship or material, twelve months from the date of purchase. One condition of the warranty was that broken parts should be returned to plaintiffs in order that they might be presented to the [491]*491foreman of the factory and repaired. This meant, of course, if repair was possible; .otherwise they would be replaced. To defeat plaintiffs’ action merely because two wheels broke down, in the face of a warranty accepted by defendant as the measure of plaintiffs’ obligation and binding them to replace or repair the wheels*, would be to disregard the contract between the parties. The fourth instruction for defendant also erred in declaring that if the hind wheels broke down or became too weak, by reason of the spokes becoming loose, thus unfitting the wagon for use, then defendant had the. right to refuse to accept or pay for it. As said, defendant had already accepted the wagon and had returned the broken -wheels for replacement or repairs; thus abiding by the contract. Defendant’s correspondence as late as June 7th, was but an insistence on new wheels being sent or the first ones repaired and returned. The second instruction erred in laying stress, in its first clauses, on the fact that defendant had requested new wheels. That suggestion was made in defendant’s first letter, but in the second one written May 4th, defendant said, in substance, that the wheels had been returned to be repaired, if they could be. According to the theory on which the case was tried, the essential question was whether plaintiffs exercised reasonable diligence to have the wheels repaired and returned to defendant promptly or new ones sent in their place, if they could not be repaired. The evidence goes to show the delay was the fault of the railroad company, and that the repaired wheels were put in charge of said company and consigned to defendant at as early a date as possible. However, this issue was for the jury’s decision. A case in this court must be determined with reference to the theories on which it was tried below; but without passing on the question, we will say it looks like the real remedy of the defendant was by counterclaim for breach of the warranty. The jury was instructed erroneously; there[492]*492fore the judgment will be reversed and the cause remanded.

All concur.

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Bluebook (online)

99 S.W. 814, 122 Mo. App. 484, 1907 Mo. App. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawson-v-williams-hardware-co-moctapp-1907.

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