Metropolitan Rubber Co. v. Monarch Rubber Co.

Bond, J. — In a general order for goods given plaintiff by defendant on the nineteenth of June, 1896, to be shipped during the following fall and summer, was included the following item: ' “At once 342 Mens 350 Cape ets, as given by Mr. Dowse.” The item thus referred to was shipped by plaintiff on the twenty-ninth of June, and reached the store of defendant in St. Louis on the sixth day of July following. Upon an inspection of the shipment it was discovered that three hundred and fifty-seven rubber coats had been sent. It was further discovered that there was a difference in the linings of a large number of the coats from the lining of the sample which was exhibited to defendant at the time the order for this lot was given. Defendant testified that the purchase was made by it upon sample. Plaintiff’s evidence tended to show that the purchase was made by defend [270] ant of a: “job lot,” and not upon sample further than the goods should correspond in their general make to the sample exhibited at the time the order was given. On the thirteenth of August defendant notified plain tiff of its objections to the goods in question as not corresponding to sample and that it would reject the whole lot unless a reduction in price was given. Plaintiff refused to accept this proposal and insisted that it had complied with its contract of sale with defendant, and was entitled to the contract price of $1.95 per garment. After some further correspondence the goods were reshipped to plaintiff by defendant on the first of February, 1897. Plaintiff at once notified defendant that they would be stored subject to its orders, and that the contract price must be paid. Defendant declining to pay, plaintiff brought the present action for the contract price of the goods. Defendant interposed a general denial and also a counterclaim for damages, based upon the alleged failure of plaintiff to comply with its contract of sale. There was a trial and a verdict and judgment for plaintiff, from which defendant has appealed to this court. Ep™cuc“trial: appellate. But two errors are assigned in this court. First, the admission in evidence of the correspondence between the parties which ensued after the order for the goods'was given. An examination of the record discloses that, upon the ruling of the trial court that a portion of this correspondence was admissible in evidence, the attorney for defendant consented that the whole of it might be received. This precludes defendant on appeal from any objection on account of the reception in evidence'of the letters between the parties. The next error assigned relates to the instructions. An examination of the record discloses that [271] the court gave one instruction of its own motion, several instructions at defendant’s request, and did not give any instructions at plaintiff’s request. The only complaint in the motion • for new trial on the subject of instructions is the ‘ ‘granting of improper instructions asked by plaintiff.” Instructions: practice,appeiThe law is too well settled in this state for a citation of authorities that in order to enable the appellate court to review the action of the trial court m giving or refusing instructions, exception must be taken by the appellant to the ruling of the court at the time the instructions are given or refused, and such exception must be renewed in the motion for new trial. As the motion for new trial in this case does not complain of the instruction given by the court of its own motion, that instruction is not properly before us for review. Griffith v. Hanks, 91 Mo. 109; State v. Nelson, 101 Mo. loc. cit. 480; Roberts v. Boulton, 56 Mo. App. 405. While this disposes of the errors assigned and warrants an affirmance of the judgment, the same result would follow irrespective of the correctness of the rule of law stated in the court’s instruction, for the reason that it is conceded by defendant that the goods sued for were delivered to it on the sixth day of July, 1896, and that it gave no hint or intimation to plaintiff of any intention to rescind the contract of sale for breach of warranty, until the thirteenth day of August following. While the question of reasonable time, in its application to the duty of a vendee to notify the vendor of a rescission of a sale of goods, is ordinarily one of fact to be determined by the jury, yet when the facts are admitted and the lapse of time is so great that no fair-minded men with a knowledge of the circumstances of the case could hesitate to hold the delay unreasonable, it becomes the [272] duty of the court to declare it such as a matter of law. Tower v. Pauly, 51 Mo. App. 75, and cases cited. In the case at bar it is shown by defendant’s letters that it was anxious to have the goods in dispute delivered at once. If the purchase was made upon a warranty, it became the duty of defendant immediately after the reception of the goods, to inspect them for the purpose of ascertaining whether or not any defects covered by the warranty existed, and if such were found to give immediate notice thereof to plaintiff (if defendant intended to rescind the contract on that ground), in order to enable plaintiff to escape unnecessary loss or depreciation in value of the goods. This duty of timely action was peculiarly incumbent on defendant, who being a merchant was aware that the value of goods is often dependent on quick sales and is seriously impaired if they can not be disposed of until the season proper for their use has expired. It is clear to us that no fair-minded men could differ in their judgment as to the nature of the delay on the part of the defendant in inspecting the goods arid notifying plaintiff thereof as the ground of its attempted rescission, and that for this reason the court should have instructed the jury that plaintiff was entitled to recover on its cause of action. There being no complaint as to the finding of the jury on the counterclaim set up by defendant, it follows that the judgment in this case, from any point of view, must be affirmed. It is so ordered. All concur.