Boeker v. Crescent Belting & Packing Co.

REYBURN, J. 1. The appellant assigns as the first error complained of that there was a departure in the amended petition which was based on a cause of action different from that in the original complaint. Upon comparing the two pleadings both contain many allegations in common, and the cause of action in both is predicated upon the warranty of defendant and a breach thereof assigned in both.. Applying the test established by a recent case, the same evidence would substantially have been required in support, and the same judgment rendered in the one as in the other, and there could have [433] been no departure. Grigsby v. Barton County, 169 Mo. 221. But while we are of the opinion that there was no substantial difference between the complaints, in any event the defendant would be precluded from urging such objection on appeal in the circuit court after going to trial before the justice on the amended complaint. Williams v. Sanders, 69 Mo. App. 608. 2. Appellant insists that its imperative instruction asked at the close of plaintiff’s testimony should have been given, as there was no evidence of any rescission of the contract and in fact no right of rescission could be asserted, or exercised as plaintiff could not comply with the rule requiring the whole of the subject of the sale to be restored by the vendee, and thereby placed the vendor in statu quo. The testimony of plaintiff would seem to fully respond to both requirements, as his proof tended to establish that the employment of appellant’s goods in the manufacture of the vehicles was discontinued and ceased when their inferior quality was detected and all that had been used both on wheels still in plaintiff’s premises, and that which had been shipped, was returned and all removed from' the wheels and replaced in the cases in which the goods had been received, and a complete tender made. The rescission of the contract as disclosed by the record appears complete in the interviews between respondent and Bullock, who was present to investigate and delegated by appellant to adjust the plaintiff’s complaints. Upon a careful review no reversible error is revealed and the judgment is affirmed. Bland, P. J., and Goode, J., concur.