Opinion
No. 28128.
September 11, 1951.
APPEAL FROM THE CIRCUIT COURT, WASHINGTON COUNTY, EDWARD T. EVERSOLE, J.
Wm. C. Bernhardt, De Soto, for appellant.
Samuel Richeson, Potosi, for respondents.
This is an action by plaintiff, McCaskey Register Company, against defendants, L. M. Link and Ed Sparks, to recover the alleged balance due on the purchase price of a cash register which was sold to defendants by plaintiff under a written contract. The case was tried to the court and resulted in a finding and judgment in favor of the defendants. From this judgment, plaintiff has appealed.
The petition declares on the contract of sale and seeks a recovery of the balance due (alleged to be $140), with interest, and an attorney's fee.
The answer pleads that: "plaintiff warranted said cash register to be of good sound construction, and in usable and workable condition; that in violation of said warranty the said cash register was faulty and defectively constructed, in that it would not properly do the work of a cash register. Defendants state that by reason of said defective cash register, they offered to return the same to plaintiff, and hereby tender the return of said cash register to plaintiff."
The prayer of the answer was that said indebtedness be canceled and that the court adjudge the return to defendants of the amounts paid by them to plaintiff.
Plaintiff is a corporation engaged in the manufacture and sale of cash registers at Alliance, Ohio. In July, 1948, defendants were partners operating a business near Potosi, Missouri, known as the Midway Cafe. On July 7, 1948, the parties entered into a contract in writing covering the sale of a cash register. The total purchase price of the cash register was $165, payable $25 cash with the order, and balance in eleven monthly installments of $12 each, and one installment of $8, the first installment to be paid thirty days from the date of shipment. The contract further provided:
"It is expressly agreed that this order, including the conditions on the back hereof, covers all agreements between the parties and cannot be altered or varied by any verbal agreement or understanding.
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"Title to the goods to remain in The McCaskey Register Company until purchase price or judgment for all or any part of same is paid in full.
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"Guarantee — All defects in manufacture to be made good for a period of one year from the date of invoice, and should said system get out of order through ordinary and proper use during said period of one year then and in either event the McCaskey Register Company agrees that it will make all necessary repairs and adjustments at its factory in Alliance, Ohio, without charge to the purchaser, provided that said system shall, in either of such events, be returned to The McCaskey Register Company at Alliance, Ohio, for such repairs or adjustments. Upon the completion of such repairs or adjustments The McCaskey Register Company will return said system to the original point of shipment, shipping charges one way to be paid by the McCaskey Register Company, and the holder of this Guarantee to pay shipping charges the other way.
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"Default in the payment of any installment when due shall, at the option of The McCaskey Register Company, render the total purchase price at once due and payable or shall entitle The McCaskey Register Company to immediate possession of the goods specified herein without legal process; and any money theretofore paid hereon shall be retained by The McCaskey Register Company as rent or damages, except as otherwise provided by law, time being hereby expressly made the essence of this contract.
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"The maker or makers hereof * * * agree to pay a reasonable attorney fee, of not less than 10 per cent, of balance due, in case any part of the purchase price becomes past due and is placed with attorneys for collection.
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"We make positively no other guarantee as to any of our products other than made herein."
Defendants paid plaintiff $25 at the time the contract was signed. No further payments of the purchase price have been paid.
The register was shipped by common carrier to defendants at Potosi, Missouri, and arrived about ten days after the signing of the contract. Defendants' evidence was that the cash register never worked properly. Ed Sparks testified: "It never has worked right since I got it. It wouldn't add right and the handle slips off of it, and the keys slip off. * * * The tape doesn't add right. If you punch $1.50, it doesn't print $1.50. Maybe the next time, if you ring 80 ¢ it prints 80 ¢ over the $1.50."
In a Shuffle, who had used the cash register in question, produced in court tape used in the machine which showed errors in addition. She further stated that she had examined other tape used in the machine in which similar errors appeared. According to defendants' evidence the machine had never been used as a cash register, but only as a money drawer.
Lawrence Link testified: "It did not work properly. You would pull down on it and sometimes the whole thing would work down. You would have to pull the handle sometimes the second time to get it all the way down. Occasionally the tape would fold up. It would print one set of figures over another. * * * It didn't total correctly. You could operate it and one time it would be all right and the next time it would be off. You would have to check and double check the figures."
At the time the contract of purchase was entered into the representative of the plaintiff told defendant Sparks that he would return in a few days and if anything was found wrong with the machine his company would adjust it. About three months later this representative of the company did return to defendant's place of business and, at that time, Sparks told him of the trouble he was having with the machine. The company's representative then told Sparks: "I am not on this territory anymore and don't want anything to do with it." Sparks then told this man that he wanted the company to pick up the machine; that he did not want it. To this the plaintiff's representative replied that he "would take it up with the company." He also told Sparks: "I will get the repair man down here." Sparks testified that he did not make any complaint in writing to plaintiff's home office.
Some time later another man came to defendants' place of business and identified himself to Sparks as a representative of the McCaskey Cash Register Company. In his testimony Sparks refers to this man as a "repair man from the McCaskey Company." Sparks testified: "The repair man came down. I said, `This is a used register and I want to take it up with the company.' I said, `If you fix the handle, will you guarantee it to work?' He said, `It is your cash register and I will not guarantee it.' I said, `I don't want the register because the reading is not right on it.' I said, `Why should I pay $140 more on it?' I told the man to tell them to come and get it." Sparks further testified that he received a letter from the McCaskey Company requesting that the cash register be sent into the company. Defendants did not comply with this request, but told the company's representative that he "wanted them to pick it up. I didn't want the cash register." Sparks further testified: "They wanted me to pay the freight on it and I told them I wouldn't pay one dime on it until I got one that worked. That is the answer that I gave the representative."
In this case there was a contractual disclaimer of warranties except those specifically provided for in the contract. Those provided were: (1) that there were no defects in the manufacture of the machine in question, and (2) that with ordinary and proper use the machine would operate one year without need of repair. National Cash Register Co. v. Layton, 207 Mo.App. 454, 232 S.W. 1091. But the contract fixed and limited plaintiff's responsibility in the event of a breach of either of said warranties to an adjustment or repair of the machine within one year from the date of invoice, provided the machine be returned to the McCaskey Register Company at Alliance, Ohio, for such purpose. It was also provided that the purchaser, in the event of a return of the machine for adjustment or repair, should pay the shipping charges one way. The foregoing conditions are valid and binding as conditions precedent to the assertion of any claim of breach of warranty by the purchaser. Yerxa, Andrews Thurston v. Randazzo Macaroni Mfg. Co., 315 Mo. 927, 288 S.W. 20; Nichols-Shepard Co. v. Rhoadman, 112 Mo.App. 299, 87 S.W. 62; Columbia Weighing Machine Co. v. Young, 222 Mo.App. 144, 4 S.W.2d 828; Jasper County Bank v. Barts, 130 Mo.App. 635, 109 S.W. 1057; Acme Harvesting Machine Co. v. Gasperson, 168 Mo.App. 558, 153 S.W. 1069.
Respondents do not dispute the binding effect of said conditions, but claim a waiver thereof, by conduct on the part of plaintiff inconsistent with an intention to rely upon said conditions. That such conditions may be waived is unquestioned. Where one is possessed of any right or defense conferred upon him by law or contract and, with full knowledge of the material facts, does something inconsistent with the exercise of such right or defense or of his intention to rely upon it, and the other party acts in reliance upon such apparent intent, a waiver may arise which will preclude the party possessed of the right or defense from relying upon it. The rule is stated in Williston on Contracts, (Rev. Ed.), Vol. III, section 689, as follows: "The peculiarity of the doctrine of waiver used in the narrow sense which seems desirable is that effect is given to a promise, express or implied in fact, when, in reliance thereon, action has been taken by the promise though no consideration is given in exchange for the promise. Not all promises can thus be made enforceable, but a premise to forego the advantage not yet accrued of a breach of condition and sometimes of a breach of a promise may be. There has been a distinct tendency in courts of equity to enforce promises where something resembling a fraud would otherwise be perpetrated. Nothing could well have a more fraudulent operation than to allow one who is bound by a conditional promise to indicate by words or acts, while performance of the condition is still possible, that its non-performance will not affect his own action under the contract, and, subsequently, when in reliance on this statement, the promise has failed to perform the condition, and the time has passed when it is possible to do so, to set up the failure as an excuse for the non-performance. It is immaterial whether the condition is express or imposed by law. * * * This is a principle distinct from the ordinary equitable estoppel, since the representation is promissory, not a misstatement of an existing fact. The promisor misstates' no fact; he says, at most, simply, `I will perform though you do not comply with the condition,' or, `though you subject yourself to a legal defense.' To bring the case within the reason of the rule it is essential that the promise could and would have performed the condition, or would not have allowed the defense to arise, had it not been for the promisor's waiver. For if the promisee could not have entitled himself to performance of the promise, even had there been no waiver, there is no equitable reason why the promisor should not take advantage of the breach of condition or other defense. He has promised that he would not, but his promise was not only wholly gratuitous, but has not been acted on."
Respondents contend that the conditions relied upon by appellant in this case were waived by appellant attempting to remedy the defective condition of the machine on the buyer's premises, and by assuring respondents that any defect would be adjusted. To this we cannot agree, for the reason that the evidence fails to show any representation or acts on the part of plaintiff inconsistent with an intent on its part to rely upon the conditions of the contract or that defendants' failure to perform said conditions precedent was induced by any representation or conduct of the plaintiff.
The evidence shows that plaintiff's representative told defendant Sparks at the time the sale was made that he would return in a few days and if anything was found wrong with the machine his company would adjust it. Said statement certainly did not evidence an intent on the part of the company to waive a compliance with the conditions relied upon by plaintiff. It was a declaration consistent with an intent to rely upon the written agreement which required the machine to be returned to the plaintiff's home office for the purpose of making adjustments made necessary by reason of defects in manufacture.
About thirty days after the sale the company's representative again appeared at defendants' place of business. Mr. Sparks at that time told the company representative of the trouble defendants were having with the machine, and the company's agent replied: "I am not on this territory anymore and don't want anything to do with it." Sparks then told the company's agent that they did not want the machine and wanted the company to "pick it up." To this the agent replied that he would "take it up with the company." Here, again, we find no evidence of waiver, but do find evidence of an intent on the part of defendants to rescind the transaction. Some time later another representative of the company appeared at defendants' place of business. Sparks speaks of this person as a "repair man." Just what his purpose was in coming to defendants' place of business is not clear. There is no evidence that he made any repairs on the machine in question, or even requested the opportunity so to do. Sparks complained that the machine was a used register and asked plaintiff's agent if he fixed the handle would he "guarantee it to work," to which inquiry the agent replied: "It is your machine and I will not guarantee it." On this occasion Sparks reiterated his determination to rescind by saying, "I don't want the register because the reading is not right on it. I said, `Why should I pay $140 more on it?' I told the man to come and get it." According to Sparks' own testimony, he had received a letter from plaintiff company requesting him to send the machine to it, but that he refused to do this for the reason that the company wanted him to pay the freight. He again told the plaintiff's representative that he "wanted them to pick it up. I didn't want the cash register."
A finding of waiver would not be justified by the evidence. Defendant's failure to comply with the terms of the contract was not induced by any representation or act of plaintiff, but seems to have resulted from a determination on the part of defendants to rescind the contract for breach of warranty without affording plaintiff the opportunity to remedy the alleged defects in accordance with the terms of the contract.
The judgment appealed from is reversed and the cause remanded with directions to enter judgment for plaintiff for the balance due under the contract, together with interest, and an attorney's fee in the sum of $50. Since the evidence fails to show the date of demand, interest should be allowed from the date suit was filed.
McCULLEN and BENNICK, JJ., concur.