Eagan Co. v. Johnson, 82 Ala. 233

82 Ala. 233 | Ala. | 1886

STONE, C. J.

— Eor the purposes of this appeal, we may test the case made by the record as a contract:of sale to Johnson by the Eagan Company, of a piece of machinery manufactured by the latter. The defense is, that the machinery was less complete, and therefore less serviceable, than the machinery contracted for would have been. No intentional wrong is, or can be imputed to the manufacturer. The imperfection which gave rise to this contention, must be ascribed to the oversight and mistake of plaintiff’s agent, the Kirk Machine Company, through which the sale was negotiated. That both Johnson and the. Kirk Machine Company were under a mutual mistake as to what the machine should be capable of doing, is proved beyond contention. That the Eagan Company was ignorant of this mistake, we have no authority for questioning. • The note, however, on which the action is founded, stipulates that the machine for which it was given (a planing-machine) should be what-is known as a “double-surfacerthat is, that it should plane the two surfaces, bottom and top, at one and the same time. The machine sent planed but one surface, and cost at the shops about one hundred and forty or fifty dollars less than a double-surfacer of like dimensions would cost. This suit, we have said, is founded on this note ; and however innocent the Eagan Company may have been of intentional wrong, they are bound by the stipulations in the note.

When, in making an executory contract of sale of personal property, fraud is perpetrated to the injury of the purchaser; or whenever there is a warranty, express or implied, which has been broken ; or when the article tendered in performance of such executory agreement does not conform to the stipulations, — either of these furnishes ground of defense to any suit by the seller, brought for the enforcement of such contract. This defense, however, the purchaser may waive, and does waive, if, after learning the facts, he executes the contract on his part, or does any other act inconsistent with his right to make the defense. Barnett v. Stanton, 2 Ala. 181, 189; Benj. on Sales, § 144; 1 Pars, on Contr. 591-2; Grinaldi v. White, 4 Esp. 95; Phillips v. Ocmulgee Mills, 55 Ga. 633.

Early in November, 1884, Johnson received the planing-machine, immediately detected its incompleteness as a double-surfacer, and informed the Kirk Machine Company of it. Some correspondence ensued in regard to it, in which the Eagan Company took part. No conclusion or adjustment was reached, and the machine was neither tendered back, nor demanded. Johnson put the machine to use, and in March sold it to his brother, who was his surety on the note for the unpaid purchase-money.

The note on which the action is founded is made payable at a bank in Chattanooga, Tennessee, and matured January I, 1885. On December 31st, 1884, Johnson wrote to the Kirk Machine Company, saying : “I have been unable to do any business in the way of shipments during the month. . . Am unable to make a payment on planer now, but will do so as soon as possible. I hope you will appeeiate my condition, and act liberal(ly) with me. I will do all in my power to accommodate you.” The italics are Johnson’s. The present suit was brought in September, 1885.

It is contended for appellant, that the promise contained in the letter of December 31, 1884, and the sale of the planing-machiue by Johnson made in March, 1885, were severally and collectively a ratification of the sale, and justified the jury in disallowing the defense set up. The sale evidently estopped the defendant from tendering the machine back, and claiming a rescission. Use of the machine had, perhaps, done that. Did this conduct, as matter of law, cut off all defense by way of recoupment? — Snow v. Schomacker, 69 Ala. Ill. In Jemison v. Woodruff, 31 Ala. 113, this court said : “Unless there was a rescission of the sale, or unless the article purchased was valueless; the purchaser could not. resist the payment of the entire purchase-money ■of the'defective article. His defense, while ,he retains.the article purchased, extends only to an abatement of the price agreed tobe paid,” — Gilmer v. Ware, 19 Ala. 252; Merriwether v. Taylor, 15 Ala. 735; McGar v. Williams, 26 Ala. 169; Thomas v. Ellis, 4 Ala. 108; Hunter v. Waldron, 7 Ala. 553 ; Brown v. Freeman, 79 Ala. 106.

Under our rulings, in a case like the present, the purchaser may rescind, by refusing to accept the ■ article tendered. To do so, he must assert no ownership or control of the- property, inconsistent with the seller’s, rights as ■owner; and, if he has acquired possession, he must tender it back within a reasonable time, unconditionally, if he has ■made no payment. If he has made payment, total or partial, he may qualify the tender back, by a retention of possession until restitution is made. Fqr this purpose, and to ..this extent, the law allows him to retain the possession as a security. He is not required, however, to demand a rescission. He may keep the property, and claim damages for the imperfection or' deficiency, either by way of recoupment, or by separate action, if necessary or advisable.

If the right to rescind was the only remedial defense the law left open to Johnson, then the three charges asked by plaintiff should each have been given. They are not compatible, however, with that other line of defense which we have shown he was authorized to make; and the Circuit Court, in refusing to give each and all of them, committed no error.

Affirmed.