Elgin Jewelry Co. v. Withaup & Co.
Missouri Court of Appeals
Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge. (1) The court erred in permitting the defendant to testify as to the terms and conditions of the, contract as the whole matter was merged in the written contract. Gooch v. O’Conner, 8 Mo. 391; State ex rel. v. Hashaw, 98 Mo. 358; Taylor v. Fox, 16 Mo.
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Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge. (1) The court erred in permitting the defendant to testify as to the terms and conditions of the, contract as the whole matter was merged in the written contract. Gooch v. O’Conner, 8 Mo. 391; State ex rel. v. Hashaw, 98 Mo. 358; Taylor v. Fox, 16 Mo. App. 527. (2) Defendant in this case could not rescind because he had not complied with the terms of that part of the contract which required him at once to examine the jewelry and within two days notify the plaintiff by registered mail of any shortage or variance. But on the contrary…
1Opinion of the CourtGoode, J.
(after stating the facts). — The main defense is the failure to give notice of the defective quality of the jewelry within two days after its receipt. In our judgment that clause of the written order cannot be interpreted to mean that if the goods were not of the quality ordered, notice must be given within the stated time. The quantities of the different articles ordered were sent. Neither was there “a variance from the order.” The variance was from the representations made by the agent. The natural interpretation of the clause is that if there was a shortage in the articles shipped or some…
2Cases cited5 opinions
- Mayer v. . DeanNew York Court of Appeals · 1889
- Thomas v. . BeebeNew York Court of Appeals · 1862
- Liebke v. MethudyMissouri Court of Appeals · 1883
- Pratt & Co. v. Langston Mercantle Co.Missouri Court of Appeals · 1905
- Sachleben v. HeintzeSupreme Court of Missouri · 1893
3Cited by2 opinions
- Tiffany v. Times Square Automobile Co.Missouri Court of Appeals · 1913
- Equitable Manufacturing Co. v. WafulMissouri Court of Appeals · 1908