Nichols-Shepard Co. v. Rhoadman

87 S.W. 62, 112 Mo. App. 299, 1905 Mo. App. LEXIS 127

• Court: Missouri Court of Appeals
• Decided: April 18, 1905
• Status: Published

Opinion

GOODE, J.

(after stating the facts.) — It is plain from the foregoing statement that the instructions of the court were correct. The rights and obligations of the respective parties were controlled in this case by a written contract containing stipulations which were conditions precedent to any right of action by either party. Plaintiff was bound to make good its warranties; but to lay it liable to an action for breach of warranty, it was incumbent on the defendants to perform their stipulations. [Nichols, Shepard & Co. v. Larkin, 79 Mo. 267, 274.] This they failed to do. They threshed with the machine through one entire season, though their contention is that from the first it failed to work as warranted and was very unsatisfactory. After the plaintiff had been notified of the imperfections in the appliance and failed to correct them, the duty of the defendants was to return it to New Canton where they, received it, if their purpose was to rescind the contract and refuse payment of their notes. The letter we have copied shows that at the close of the threshing season in the latter part of October, defendants had no complaints b> malee of the stacker; none at least which looked to repudiation of their liability for the price of it. All they asked was a renewal of the note when due, assigning as a reason that illness had prevented them from making the money to pay the note. It is true the letter said the season was nearly over before they got the machine to work properly, but there was not the least suggestion of a desire to rescind the contract and return the machine to the plaintiff. The meaning of the letter was quite the contrary. To obviate the effect of this conduct defendants insisted on their offer to return the machine to White and his refusal to accept it. The written contract distinctly required them to return it to the place where they received it and provided that no agent, general or special, had power to waive or alter that or any other condition of the contract — that no person, other than an officer of the company, had such authority. It is not contended and could not successfully be contended that the appliance was utterly worthless for any purpose; for it was used during the season. It is out of the question that defendants should thus use the machine and escape liability for the purchase price.

In explanation of the letter, defendants insist that it was written to please White and with no intention of conceding the machine could be used or waiving any claim for breaches of the warranties. This testimony indicates the reason why plaintiff had provided against waiver by a local agent. According to the defendants White said plaintiff would refuse to pay a large amount it owed him for commissions and his business would be ruined if defendants allowed themselves to be sued on their note in October, asked them to get a renewal and said he would sell the machine and get defendants’ notes from plaintiff. White was a local agent and desirous of protecting his own interest, which was adverse to 'the plaintiff in this affair. Defendant’s only offer to return the machine was made to White, who opposed its return and agreed to dispose of it. Defendants, either from yielding to- his persuasion or from some other motive, never returned the stacker or notified plaintiff of a wish to do so. Their letter, far from signifying such a wish, conveyed exactly the opposite impression, namely, that the defendants intended to keep the stacker but wanted an extension of the matured note. In view of that letter the plaintiff was justified in regarding the defendants as having elected to stand by their purchase, notwithstanding the delay the letter said they had experienced in getting the stacker to- work properly.

We have said nothing about the failure to notify the plaintiff of the defects of the machine by registered letter, because we consider defendants’ failure to comply with their stipulation to return it a sufficient reason for rejecting their defense. The judgment is affirmed.

All concur.