Jesse French Piano & Organ Co. v. Wallace

ELLÍSON, J. This action is on a contract for the purchase price of a piano. The judgment was for plaintiff in the trial court. [382] By the terms of the contract the delivery of the piano was to be accompanied by a written warranty. There was evidence tending to show that the instrument delivered was not the one called for by the contract and that defendant rejected it. On the other hand, there was evidence tending to show that it was the piano named in the writing. The jury must determine the question. The piano was delivered, but the party making the delivery did not have the warranty with him. Defendant now contends that she had a right to reject the piano and annul the contract on account of the absence of the warranty right at that time. If plaintiffs agent making the delivery had refused or disclaimed a warranty, defendant’s position would be well taken. But if plaintiff was all the time willing to furnish it and intending to do so, and simply did not have it at the moment of delivery, such default would not justify, defendant in annulling, the contract and refusing the piano. The warranty was immediately afterwards procured. We think, the evidence considered, there is no valid objection to instructions given for plaintiff. The contract called for a piano of “style J.” There was some evidence, including the numbers on the piano and the box, that the one furnished was a different piano known as “style E.” Then plaintiff offered evidence tending to show that in point of fact they were one and the same piano. We think, therefore, defendant’s instruction number 4, requiring the jury to find the two styles represented the same piano, before they could find for plaintiff, should have been given. In that case plaintiff would be entitled to an instruction based on the hypothesis that “style J” referred to the kind of wood used for the case, and that “style E” referred to the interior make-up of the instrument, or, as some of the witnesses termed it, “the piano itself.” It ought not to be difficult to frame two instructions, one for each party, on these contentions, as they are brought out in the evidence. [383] We have concluded that defendant’s objection to the contract is well taken. It was a contract made by filling out a printed blank. In it was a blank’ space for price, at the end of which was written the word “dollars,” thus:-Dollars. There was nothing' written in such space but figures and characters were inserted in parenthesis in the space so that it appeared in the contract thus: ($295) -Dollars. Defendant insists that this does not show a price, that the character represents a number and has no reference to dollars. If the character was a dollar mark it could be taken to be two hundred and ninety-five dollars. So if it was merely the figures, “295,” this could be connected with the word “dollars” to the right of the blank space. But being figures in parenthesis, following a sign of numbers, it can not be said, absolutely, to represent a price expressed in dollars. It has the appearance of negativing the idea of money. The better pleading would be to refer to this in the petition and to state that in so writing the contract, the signs and figures aforesaid were meant and intended to represent the purchase price in dollars. And the evidence should tend to support this allegation. In Bigelow v. Sorrell, 142 Mass. 442, the following written order: “Please send us pice of counter screen like draft,” was held to be unmeaning and unintelligible and presented a case of “incurable uncertainty,” and that the trial court properly refused to submit to the jury whether the letters “pice” meant “piece” or “price.” We do not go so far in this case since, as we have stated, we think the order here, while not so certain as to justify the assumption, as a matter of law, that it meant to state a price, was yet sufficient to submit to the jury whether it named a price or left it blank; in which ease a reasonable price for such character of property would be intended. As we have already stated, if the blank had been filled with figures with a dollar mark prefixed, it would have been sufficient, as it is not necessary that the price [384] should be written out in language. The sign of a dollar is held with us to be sufficient in pleading, though formerly it was not so. Fulenweider v. Fulenweider, 53 Mo. 439. At first reading it may be thought that our conclusion is not in harmony with Murrill v. Handy, 17 Mo. 406, and Grant v. Brotherton, 7 Mo. 458. In the former, the word “dollars” was omitted from a note and in the latter from a bond. But in each, there being nothing in any degree to the contrary, that word appeared, necessarily, to be meant to an intent certain. But in this case we have a sign of numbers, together with the parenthesis and the blank space, tending, in greater or less degree, to negative an intent to name a price. Unless it appears that defendant’s husband acted as her agent in the transaction, his testimony is not admissible. If her agent as to any part of the transaction, he could testify as to that part. • ' ' The judgment is reversed and the cause remanded. Smith, P. J.j concurs; Gill, J., absent.