Manley v. Crescent Novelty Manufacturing Co.

77 S.W. 489, 103 Mo. App. 135, 1903 Mo. App. LEXIS 276

• Court: Missouri Court of Appeals
• Decided: December 1, 1903
• Status: Published

Opinion

REYBURN, J.

(after stating the facts as above).— 1. The statement of his cause of action filed in magistrate’s court, by plaintiff at inception of the proceeding was sufficient: formal pleadings on part of either plaintiff or defendant are expressly dispensed with by statute in a justice’s court, and a statement sufficiently specific to inform the opposite party of the basis and character of the demand asserted, and to bar a subsequent action founded upon the same facts, is a full compliance with the statutory requirement. R. S. 1899, sec. 3852; Johnson v. Kahn, 97 Mo. App. 628. 'While the recitals of plaintiff’s complaint do not contain all the allegations sufficient to constitute the cause of action sought to be upheld by the proof introduced, the statute’s liberal provisions are met and satisfied.

2. The delivery of the cutters from time to time as manufactured seems to have proceeded, till September 27, 1901, when final shipment was made completing the total number delivered as stated. By letter of October 20th, plaintiff made a series of objections to the tools received, enumerating various defects and imperfections, and concluding with a declaration that he wanted no more like them, and could not accept any of them as a fulfillment of the contract and inquiring what defendant. proposed to do-. About the middle of March-following, defendant was advised by attorneys of -St. Louis that plaintiff had placed his claim in their hands for immediate attention, and this proceeding was begun soon after.

In a sale of personalty upon express warranty by the vendor or in sale on sample, the right of rescission by the vendee is firmly established in this State, although the rule in many other States is otherwise. 2. Mechem, Sales, sec. 1805; Johnson v. Whitman Agricultural Co., 20 Mo. App. 100. The enforcement of this remedy, however, is conditioned upon its exercise seasonably and the restoration of the opposite party to statu quo by surrender of all obtained by the vendee under the contract. The vendee has of right a reasonable time, after arrival of the chattels sold, to satisfy himself whether they complied with the warranty, or, if sold by sample, with the latter; but in determining to refuse the property and rescind the sale by tendering it back to the vendor, he is required to act within a reasonable period. The established rule deduced from the many decisions upon the subject is, that what will be a reasonable time is usually a question of fact for the jury, and not a question of law for the court; where fair-minded men may reasonably differ in opinion upon the question, whether the vendee had exercised his right of rescission and made return of the personalty sold with reasonable promptness, the issue is one of fact for the jury, but where the period of time, suffered to elapse between the delivery and the effort to rescind, is so long thát no such question can arise; the issue is not one of fact for the determination of the jury, but it becomes the duty of the court to pronounce the delay unreasonable as a matter of law. In other words, the time may be so short that the court may declare it reasonable or so long that the court may declare it unreasonable. Tower v. Pauly, 57 Mo. App. 75; Steam Heating Co. v. Gas, etc., Co., 61 Mo. App. 148; Skeen v. Springfield, etc., Co., 34 Mo. App. 485; Rubber Co. v. Rubber Co., 74 Mo. App. 266; Branson v. Turner, 77 Mo. 489; Johnson v. Whitman, etc., Co., 20 Mo. App. 100.

The tender of the return of the cutters and demand for payment of the money paid therefor, was made on behalf of plaintiff subsequent to the eighteenth of March, 1902; no explanation or excuse was made or attempted, why the rescission of the contract had been so long deferred after notice given in letter of October 20, 1901, of the defective character of the cutters, and that they would not be accepted under the contract, and without hesitation or doubt, so long an interval should have been declared an unreasonable time and the plaintiff barred from the relief sought in this action.

The instruction asked by appellant at the termination of plaintiff’s testimony, and again, in substance, requested at the close of the whole case, to the effect that, upon the pleadings and all the evidence, the plaintiff was not entitled to recover on his cause of action against it, and that the verdict of the jury upon the plaintiff’s cause of action must be in favor of defendant, should have been given. The judgment is accordingly reversed and the cause remanded.

Bland, P. J., and Goode, J., concur.