Avil Publishing Co. v. Bradford

BROADDUS, P. J. This suit was commenced in a justice’s court where defendant recovered. Plaintiff appealed to the circuit court, where on trial anew he recovered, and the defendant appealed to this court. On December 15, 1902, the defendant in writing gave an order to the Avil Printing Company, of which the plaintiff is the successor, for one set of “The Ridpath Library of Universal Literature,” consisting of twenty-five volumes, for which he agreed to pay $39.60, in payments of $5 each, to-wit: $5 doAvn and $5 in each [580] month thereafter until the whole purchase price should he paid. He paid the first $5, but upon receipt of the books they did not prove satisfactory • to him and he refused to make any other payments. The suit is to recover the balance claimed by plaintiff as due on said order. ■ The order provides that the books were to be bound in “extra embossed linen.” The defendant’s evidence tended to prove that the books were not bound in “extra embossed linen,” but in material of an inferior kind. Defendant testified that upon receipt of the books he examined them and found that they were not the books he bought, whereupon he wrote plaintiff that their agent had misrepresented thing’s or that they had sent the wrong books and that he would not take them. Upon motion of plaintiff the court struck out all of defendant’s evidence and gave judgment in its favor for $34.60. We gather from the briefs and argument of counsel that the action of the court was predicated upon the theory that as defendant had failed to file a counterclaim his evidence was inadmissible, and consequently he had no defense, to the action. If the books did not comply with the terms of the written and accepted order of defendant, he was not bound to keep them after having received and inspected them. [Fairbanks, Morse & Co. v. Mining Co., 105 Mo. App. 644; Schwab & Co. v. Frieze, 107 Mo. App. 553; Little Rock Grain Co. v. Brubaker & Co., 89 Mo. App. 10; Branson v. Turner, 77 Mo. 489.] There is no doubt but what goods received on an order upon the dealer are subject to inspection by the purchaser. He may retain the goods, if not as represented, and sue for damages, or he may refuse to accept them and ask for a rescission of the contract. And it was not necessary for the defendant to file any counterclaim in the justice’s court in order for him to- maintain his defense. It was a [581] question for the jury to say whether the books complied, with the terms of the order. If the defendant refused to accept the books on that account and so notified plaintiff, and that they were subject to its order, and demanded the return of the $5 he paid for them, he was entitled to a verdict. He was not compelled to bring the books into court and tender them to plaintiff. The place of delivery of the books was Columbia, Missouri, Eighth and Broadway, defendant’s business address; which was the place that defendant under his contract was bound to redeliver them to plaintiff, if plaintiff consented to a rescission of the sale. [Phares v. Jaynes Lumber Co., 118 Mo. App. 546, 94 S. W. 585.] It is true, as contended by plaintiff, that if defendant received and retained the books without objection, his acts constituted an acceptance. Its contention is that there was no substantial evidence that defendant gave plaintiff any notice that the books were not as represented; that he fixes no date when he wrote the alleged letter 'to the plaintiff in reference to that matter. But we think otherwise. He stated that the books arrived in due time when he discovered immediately that they were not the books he bought and that he “sat down and wrote to the company and told them that their agent had misrepresented things or they had sent the wrong books and, if they were the books they wanted me (him) to take, I (he), would not take them, and for them to send me back my $5, and that the books were subject to their order. They paid no attention to it and I (he) paid no attention to them.” We gather from the above quotation that he wrote to the plaintiff promptly upon receipt of the books that he would not accept the goods and asked for a rescission of the contract. It is true he does not say in so many words that he mailed the letter, but we think it a reasonable inference to say that, if he is to be believed, that he did SO'. Furthermore, he says that he told Mr. Wal [582] ker, plaintiff’s attorney, that he would return them if he knew where to send them. The defendant was not cross-examined as to whether he mailed the letter and the matter was thus left, under which circumstance, we think, the inference that the letter was mailed was somewhat strengthened. Reversed and remanded. All concur.