75 So. 139 | Miss. | 1917
delivered the opinion of the court.
George Alig, appellant, was plaintiff below and filed suit on a promissory note for two hundred and twenty-five dollars, which was given as part of the purchase money of certain machinery. The note was secured by a deed of trust on the machinery in question, being a steam engine, boiler, and sawmill outfit. It was contended by defendant that the plaintiff had warranted the machinery to be in good, sound condition, and that as a fact the machinery was not in good condition, but that the 'defendant was compelled to spend large sums of money in repairing the machinery. The machinery was sold and the note given May 24, 1913, the machinery at said time being situated at Plain in Rankin county and moved to Greenfield in Rankin county' and thereafter operated by Lackey. On January 5, 1915, Lackey wrote the Merchants’ Bank & Trust Company, who then held the note for collection, that it was impossible to pay the note at the present time as the market for lumber had been bad and he had hardly made expenses, but that he would pay interest if Mr. Alig would renew this note, and that he hoped that in the near future that he would be able to pay part, if not all, of the note. The note was thereupon turned over to an attorney, and Mr. Lackey wrote the attorney on the 11th day of February, 1915, as follows:
“I wish to say in regard to the note I owe Mr. Alig, it is impossible for me to pay it now as we have no lumber market to speak of, and times are such as you know it is most impossible for a man to.live, as high as everything is. But I will pay same as soon as I can*397 and expect to. Bnt if he has to have his money right now, go ahead and sell it, as I cannot meet my obligation at the present time. I will pay the interest of twenty-three dollars, bnt that is all at present.”
Suit was filed on May 3, 1915. On the trial the contentions of the defendant were denied as to warranty, and it was contended by the plaintiff that it was a sale without warranty, and also that the defendant had recognized the justness of the demand, and had used the. machinery after discovering the defects, if any, and that he was not entitled to a rescission or recoupment on account of any defects in the machinery. On the trial of the cause the court gave the defendant the following instruction:
“If you believe from a preponderance of the testimony that plaintiff warranted the machinery involved in this litigation to be sound and in good working order at the time of the purchase by defendant, and if you further believe that the valve slide and other parts of the machinery were not sound , and in good working order, and that these defects, if you believe they existed, were not known by defendant, then it is your duty to return the following verdict, to wit: ‘"We, the jury, find for the defendant.’ ”
We think the giving of this instruction was error. In the first place it warrants the jury in returning a verdict for the defendant if there was a defect in any of the machinery without embracing a qualification that the' defendant must have reseind'ed the contract promptly on finding out the defect; and by not qualifying the instruction so as to limit the reduction of the amount to the actual value of necessary repairs to make the machinery come up to representations. The defendant having retained the machinery after knowledge of the defects and used the machinery thereafter, could not, when sued on the note, rescind the trade. At most, his right was to recoup; and the jury should have been
Reversed and remanded-
