Ziehme v. Parish

The opinion of the court was delivered by Smith, J.: The only error alleged which need be considered is the sustaining of the demurrer to the plaintiffs’ evidence and rendering of judgment for the defendant. The demurrer was upon three grounds: (1) That there was no evidence tending to prove the execution of the written order; (2) that the evidence did not tend to prove any consideration for the contract; and (3) that the evidence did not tend to show that any sum was due. A part of the evidence introduced was the following from the deposition of J. W. Barnes: “Ques. In your former answer you mention an order blank and the terms of the same. Please state if this is the original order signed by Susan B. Parish, to be hereto attached and marked ‘Exhibit A.’ Ans. Yes.” “Exhibit A” was then introduced in evidence, and, [544] omitting the long list-of articles attached, which footed up $196, it reads as follows: “No claims for deficiencies will be allowed unless made immediately after receipt of goods. “Agreements made with salesmen are not^ binding on us unless specified on original order returned to us. “St. Louis Jewelry Company, Wholesale Jewelers. “No goods taken back for credit. “All goods f. o. b. St. Louis. “Broadway and Chestnut St., St. Louis, Mo. “Sold to............................ “Terms: Cash disc., 6% 10 days, 3% 20 days, net 30 days. “Special time payments: Vi due in 4 months. Vi due in 6 months. Vi due in 8 months. Vi due in 10 months. “Special time payments must be closed by note within 10 days. “List of goods: . . . “Our Warranty: Any jewelry purchased of us that may prove defective or does not give reasonable satisfaction, may be returned to us any time within five years from date, and we will forward a new duplicate article in place of it. “Any jewelry purchased of us which does not sell readily may be exchanged within one year for new styles and pattern of any jewelry in our stock. Purchaser must prepay all express charges on repairs or exchange. ... St. Louis Jewelry Company. “St. Louis Jewelry Company: “Ship us above goods on special time payment terms. Susan B. Parish, Customer. “Salesman, J. W. Barnes. “Post-office, Como; state, Kansas; express office, Miltonvale, Kan.” The defendant was also sworn on behalf of plaintiffs and identified' the following letter, which was introduced in evidence: '‘St. Louis Jewelry Co.: “Como, Kan., 9/12, 1904. “Sir — Yours at hand. You must take your julery back or leave it as your agent ask for you sent an [545] over-stock of of goods. 37 is what the' agent said would be the amount and you have sent $196 worth. It is out of reason for a place like this. This gangling is hurting my trade. Yours, Mrs. S. B. Parish.” C. W. Van De Mark, attorney for plaintiffs, also testified, in substance, that in the early part of November he went to Como and talked to the defendant about this bill,, which he had for collection, and presented notes which he had prepared for the purchase-price of the goods, and she réfused to sign them. The evidence tends to show the execution of the order. Proof of the acceptance of the order and the shipping of the goods in accordance therewith shows a completed contract and a consideration therefor. The conditions of the order were that the bill would become due in thirty days unless time payments were secured by notes due in four, six, eight and ten months, each for one-fourth of the amount of the bill. We think the evidence, while meager, was sufficient to entitle the plaintiffs to recover, and that the court erred in sustaining the demurrer and rendering judgment for the defendant. The judgment is reversed, and the case is remanded' with instructions to grant a new trial. All the Justices concurring.