17 F. Cas. 351 | U.S. Circuit Court for the District of Massachusetts | 1818
There is no pre-tence in this case, that the representation was fraudulent. It was made,' as all parties agree, innocently, under a misapprehension of the state of the tobacco, which had not been examined by the consignees. I think, that the consignees had authority to make the representation, and that the plaintiff is bound by it. When the plaintiff sent the tobacco to the consignees for sale, there was an implied authority to represent the article to be, what it was marked and described to be. The representation of the consignees went no farther than this, that the tobacco was as good as Miller’s No. 3 had previously been. Now, in point of fact, the tobacco was very inferior in quality to what Miller’s No. 3 usually was. And certainly if that be so, the defendant has sustained an injury by the misrepresentation, and he is entitled to a recompense, however innocently it may have been made.
As to the points of law raised in the case, I am clearly of opinion, that the contract was not rescinded. There was an agreement to rescind, which was_never carried into effect, but was stopped by the plaintiff’s interference; and as the tobacco was never received back, the original contract remained valid. To constitute an actual rescission of the contract, there should have been a re-delivery of the goods. Until that is done, the agreement to rescind is in fieri.
The other point presents no pressing difficulty. Where goods are sold as of a certain quality, and they turn out to be of an inferior quality, the defendant may, in an action for goods sold and delivered, give the facts in evidence to reduce the damages; for the plaintiff is entitled to recover no more than the real value of his goods. The authorities directly support this doctrine; and there is neither reason nor justice in straining after technical objections to overthrow it Vide Orowninshield v. Robinson [Case No. 3,451]. The auction sale is not, however, conclusive upon the plaintiff, as to the value of the tobacco. The true rule for the jury is, to deduct from the original price the real difference in value between this and the common Miller’s No. 3 tobacco; and in making their estimate, they will weigh all the evidence, and give the plaintiff, what is his just due, making all deductions.
Verdict for the plaintiff, $596.85.