90 W. Va. 730 | W. Va. | 1922
The ruling of the circuit court in refusing to strike special pleas numbered 3 and 4 and permitting them to be filed over the objection of plaintiff is certified for review.
Plaintiff, a manufacturer and wholesale dealer in sugar, sold to defendant, a wholesale grocery company, several shipments of sugar. The declaration contained the common counts in assumpsit and three special counts. Special counts Nos. 1 and 2 are upon trade acceptances, the first for $3,-012.61, drawn by plaintiff on defendant, dated September 30, 1920 and accepted by the latter, payable on November 30, 1920; and the other for a. like sum payable December 30, 1920. The third count is for 80,400 lbs. of extra fine granulated sugar at 22 1-2 cents per lb. f. o. b. New York, delivered to and accepted by defendant, including $354.56 freight.
Special plea No. 3 relates to the consideration for the trade acceptances and alleges that prior to September 14, 1920 plaintiff agreed to sell and deliver to defendant 402 bags of sugar warranted to be extra fine granulated, which meant “white in color, regular in granulation, free from caking and not powdered”, for 22.941 cents per pound, or $9,222.28, which sugar was received by defendant on September 21, 1920, and, relying upon the warranty, it paid for the same on September 30 by accepting three drafts, or trade acceptances, each for the sum of $3,012.61 and payable in 30, 60 and 90 days; that afterwards, and within a reasonable time, on October 5, following, it discovered that the sugar was not as warranted and immediately notified plaintiff that it refused to accept and rejected the sugar and requested plaintiff to take it back or direct disposition of it; that on October 30 it paid the first draft then matured
Can this plea be considered as a notice of recoupment to the acceptances sued on ? Recoupment in its nature acknowledges the contract, the acceptance of the goods purchased, and demands an abatement of the purchase price to the amount of damages. sustained by a breach of the warranty. The plea asks for recovery of $3,012.61, the amount of the accepted draft paid October 30, 1920, above the amount of the two drafts sued on. A recovery over in excess of the sum sued for cannot be- had under recoupment. Ohio River Contract Co. v. Smith, 76 W. Va., 503. Damages may be recouped under the general issue but notice thereof must be given that on the trial defendant will claim to have such damages recouped. Such notice is required to prevent surprise and also to show, if a subsequent suit be brought by defendant against plaintiff, that in fact the damages claimed were really recouped in the first suit. Sterling Organ Co. v. House, 25 W. Va. 64; Powell v. Love, 36 W. Va. 96. It is argued that this plea should be treated as a notice of re-coupment under Myers v. Cook, 87 W. Va. 265. In that case the trial was had with the two special pleas filed, one for injury by misrepresentation and the other for loss of a substantial part of the consideration of the notes sued on, and evidence was introduced under them without objection. The parties and the court treated the pleas as such notices and there was no surprise. Here objection is made to the filing of this plea. Its sufficiency is questioned as a pleading before trial. We do not think Myers v. Cook is authority for holding this plea No. 3 good as a notice of recoupment. The motion to strike requires us to pass upon its legal intendment' and effect. Its form and substance make it nothing more than a defense of legal rescission for breach of warranty, and that by reason of defendant’s rescission it is entitled to a return of its purchase money and cancellation of the 'accepted drafts,
Plea No. 4 alleges that on June 26, 1920, defendant ordered from.plaintiff 804 bags of extra fine granulated sugar of the kind and quality described in plea No. 3 and with like warranty, which sugar was received by defendant on August 26, 1920, and,- -relying upon the warranty, inspection was not made, and the sugar was paid for on September 10, following; that complaints having been made by defendant’s customers to whom a portion of the shipment had been sold, inspection was made of what remained on October 5, when it was discovered that the sugar was not of the kind, grade or quality contracted for, so notified plaintiff, and that it rejected the sugar and requested plaintiff to take said sugar off its hands, or indicate what disposition should be made of it; that on November 5 defendant further notified plaintiff that there were other objections to the sugar, that it had yellow color, and then requested an adjustment covering sugars delivered and rejected; that plaintiff refused to take back the sugar, repajo any of the purchase money or make any adjustment ; that 566 bags then remained in defendant’s hands unsold, which the plea offers to return; that the amount paid for the bags on its hands and which it offers to return, was $12,653.92; that defendant did not realize the cost of the 238 bags of the shipment which it sold; and that there was a total failure of consideration for the 566 bags remaining ; and that defendant is entitled to recover the price it paid for the 566 bags, $12,653.92, which is a certain and liquidated sum, and is entitled to off-set said sum against the plaintiff’s demands. It will be observed that this plea sets up a claim arising from a different transaction than that out of which plaintiff’s claim arises, and cannot be the subject of recoupment in this action. It is not clear whether this plea is for rescission or for breach of warranty. It is not good as a plea of rescission because a rescission must be in toto; it cannot be rescinded in part. Clark on Contracts, p. 350; Tiffany on Sales, p. 111; Mechem on Sales, sec. 1398; Contract Co. v. Smith, 76 W. Va. 503; Shoe Co. v. Prince, 51 W. Va. 511. A part of the sugar, 238 bags, had been sold by
We are of the opinion that special pleas Nos. 3 and 4 should have been rejected, and so answer the question certified.
Reversed and certified back.