Emery v. G. H. Boehmer Shoe Co.

NORTONI, J. This is a suit on an account for goods sold and delivered, amounting in all to $1405.15, with interest thereon. At the conclusion of all of the evidence, the court peremptorily instructed a verdict for plaintiffs and defendant prosecutes the appeal. Plaintiffs are copartners and as such engaged in the business of manufacturing shoes in Massachusetts. Defendant is a retail shoe merchant in St. Louis. It appears that defendant purchased the shoes involved, by sample, through plaintiffs’ salesman, and they were manufactured by plaintiffs and shipped accordingly. The shoes were shipped in two consignments. The first consignment was received by defendant at its store in St. Louis on April 29, 1908, and the second consignment on May 11, of the same year. Immediately upon the receipt of the shoes' (April 29 and May 11) defendant unpacked and placed them in stock for sale. Upon unpacking the shoes, defendant marked each pair with a lead pencil, indicating the size, width, stock, make, pair, price, etc., and commenced selling therefrom to the trade. After having sold a number of pairs of shoes and kept them in stock for about two weeks, defendant, on May 25, 1908', wrote plaintiffs to the effect that lot numbers 231 and 232 were checked and the buckles on pumps were tarnished and, therefore, they did not deem it advisable to keep them and asked shipping instructions from plaintiffs. In due course, plaintiffs replied that they expected defendant to keep the shoes ns they were manufactured for them and no complaint had been made within a reasonable [707] time. Finally, on June 12, defendant returned the shoes to plaintiffs, but they refused to receive them. Upon this showing, the court instructed a verdict for plaintiffs on the theory that defendant had waived its right to rescind the contract of purchase through not acting promptly with respect to the matter. It is urged the court erred in this ruling, but we are not so persuaded. Defendant had sold some of the shoes and made no effort to return all of them to plaintiffs. Indeed, it tendered only such as remained unsold in its store at the time. The law not only requires a disaffirmance of a contract of sale at the earliest practical moment after discovery of the defect, but a return of all that has been received under it and a restoration of the vendor to the condition in which he stood before the contract was made. [See Tower v. Pauly, 51 Mo. App. 75; Cobb v. Hatfield, 46 N. Y. 533, 537.] Indeed, it stands upon the most obvious justice and equity that the seller should be apprised promptly if there is any objection and the vendee intends to reject the goods, so that he may retake possession or resell the goods and save himself as far as practical from loss. [See Pierson v. Crooks, 115 N. Y. 539.] Especially are these principles pertinent to the sale of -goods like shoes, which are known to be manufactured in accordance with changing styles. As to such goods, rescission should be made with promptness for the reason that delay may entail considerable loss upon the seller. Frequently the value of goods depends in a large measure upon quick- sales and, therefore, unless the contract is immediately rescinded, it is impossible to place the seller in statu quo. But it is said the question as to whether rescission was made within a reasonable time was one for the jury, and the court erred in peremptorily directing a verdict for plaintiffs. There can be no doubt that ordinarily the question of reasonable time .is one of fact to be determined by the jury, yet, when the facts are [708] admitted and the lapse of time is such that fair-minded men with a knowledge of the circumstances of the case would not hesitate to hold the delay unreasonable, it becomes the duty of the court to declare it such as a matter of law. This court has frequently so declared and the rule of decision is now well established, as will appear by reference to the following cases in point: Metropolitan Rubber Co. v. Monarch Rubber Co., 74 Mo. App. 266; Tower v. Pauly, 51 Mo. App. 75; Long v. International, etc. Machine Co., 158 Mo. App. 662, 139 S. W. 819; Manley v. Crescent Novelty Mfg. Co., 103 Mo. App. 135, 77 S. W. 489. According to the prior course of decision, the court very properly directed a verdict for plaintiffs on the admitted facts above stated, for it appears that plaintiffs must have been possessed of full knowledge concerning the shoes, as they unpacked, marked and placed the first lot in stock on April 29, and the second lot in stock on May 11, and made no complaint touching the same until May 25, or about two weeks after handling by pairs the second shipment. In Metropolitan Rubber Co. v. Monarch Rubber Co., 74 Mo. App. 266, a lot of rubber coats which had been purchased by plaintiff from defendant by sample were received by plaintiff on July 6 and held in stock for seven days, or until July 13, when they were rejected and a rescission declared by the purchaser. Upon these facts this court ruled that it was proper for the trial court to declare as a matter of law that the right of rescission had been waived through the omission of the purchaser to act promptly, or, in other words, that the delay in rejecting the coats was an unreasonable one. But it is argued, as the evidence reveals that the shoes were not according to sample, defendant was by the peremptory instruction denied its right to have the diminution in value determined by the jury. Defendant’s answer is a general denial and contains no plea whatever of a failure or partial failure of considera [709] tion. However, the argument is, that it was competent for defendant to show a partial failure of consideration under the general denial and háve the amount of recovery mitigated through the diminished value of the shoes because of their defective condition. There is nothing whatever in the record suggesting that any such theory was advanced at the trial, and the proposition thus asserted seems to have originated with counsel since the appeal was made. But be, that as it may, we are not inclined to hold that a failure or partial failure of consideration may be shown in this State under a general denial, for the Supreme Court has heretofore declared the contrary, as will appear by reference to Williams v. Mellon, 56 Mo. 262; see also Smith Co. v. Rembaugh, 21 Mo. App. 390, to the same effect. However, a remark in Yoss v. Maguire, 18 Mo. App. 477, would seem to indicate that a contrary rule obtained, but in view of the Supreme Court decision above cited, the proposition asserted by the Kansas City Court of Appeals in that case by Judge Haul is without authority here. For the reasons stated, the judgment should be affirmed. It is so ordered. Reynolds, P. J., and Caulfield, J., concur.