89 Me. 180 | Me. | 1896
The plaintiff brought this action on account annexed to recover a balance of $310.29 for 355 cases of canned corn, being 710 dozen cans, sold and delivered under the following agreement signed by him September 4, 1893:
“I do this day agree to sell to Red Brook Packing Co. my Sweet Corn at $1.00 per doz. warranted to be in good condition with the conditions:
1st. To pay for cans $21.00 per M.
2d. “ “ “ labels, $ 2.40 “ “
3d. “ “ “ boxes .09 apiece.
To be taken out of $1.00 per doz.”
The defendant filed an account in set off amounting to $405.78 for cans, boxes and labels furnished, and $126.13 in cash paid on account, claiming that the corn received by him was not in good condition as warranted, and had no market value, and furthermore that the contract was rescinded by him on account of this breach of warranty of the quality of the goods.
The jury returned a verdict in favor of the defendant for
It is undoubtedly settled law in this state that a sale of personal property with a warranty of quality, and without fraud, may be treated as a sale upon condition subsequent, at the election of the purchaser; and in the event of a breach of the warranty, the property may be returned and the sale rescinded, since a breach of the warranty may be equally injurious to the buyer whether the vendor acted in good faith or bad faith. Marston v. Knight, 29 Maine, 341; Cutler v. Gilbreth, 53 Maine, 176; Farrow v. Cochran, 72 Maine, 309.
But the right of rescission is limited to cases where the seller can be put substantially in the position which he occupied before the contract. “Where a contract is to be rescinded at all it must be rescinded in toto,” said Lord Ellenborough, “and the parties put in statu quo.” Hunt v. Silk, 5 East, 449. See also Kimball v. Cunningham, 4 Mass. 502; Conner v. Henderson, 15 Mass. 319; Snow v. Alley, 144 Mass. 546; Morse v. Brackett, 98 Mass. 205; Marston v. Knight, 29 Maine, 341. And this rule which makes it the duty of a buyer, who would rescind a contract for breach of warranty of quality, to restore the seller substantially to his former position, necessarily requires him to return or tender back to the seller whatever of value to himself, or the other, he has received under the contract. In Dorr v. Fisher, 1 Cush. 271, Shaw C. J., says that for breach of warranty the vendee may “rescind the contract and recover back the amount of his purchase money, as in case of fraud. But, if he does this, he must first return the property sold, or do everything in his power requisite to a complete restoration of the property to the vendor, and, without this, he cannot recover.”
The law, however requires neither impossibilities nor idle and useless ceremonies. So if the buyer’s offer to restore the goods is met by an absolute refusal of the other party to receive them if tendered, he will be relieved of the duty of actually returning 6r tendering them to the vendor at the place where the title passed.
In this case the only testimony having any tendency to show a rescission is found in the defendant’s answers to the following interrogatories:
*184 “Q. What did you say about his taking the corn back ? .
A. I told him I couldn’t use it, and it would be no good to me, and I didn’t think I ought to pay for it.
Q. What about sending it back to him ?
A. I don’t think I said anything about tendering it back; I don’t know whether I did or not, I am sure.
Q. What was said about his trying to sell it ?
A. He wanted me to get a half a dozen cans for him and he would take it home and see what he coitld do with it.
Q. How many cans did he take ?
A. Half a dozen.
Q. Whether you heard anything further from him ?
A. No sir, I didn’t.
Q. State whether after examining the corn he presented any bill to you for it ?
A. No sir.
Q. Did he make any request or demand of you for the payment of the balance ?
A. No.
Q. What is the next you heard from him ?
A. The next I heard was when they put the attachment on.
Q. What have you done with the corn ?
A. It is in my cellar subject to Mr. Milliken’s order.
Q. When Milliken came over to examine the corn, after receiving notice from you, state what the talk was about his taking the corn back. Just what the words were?
A. As near as I can remember, I told him it would be of no use to me, I couldn’t do anything with it and I wanted him to take it back. He said he would take some samples home and try and sell it himself.
Q. He did take the samples ?
A. Yes.”
The plaintiff, however, denies that the defendant ever requested him to take the goods back, and says he took the sample cans home for the purpose of examination. There is no evidence whatever
Upon this evidence the presiding justice instructed the jury as follows: “The plaintiff claims that the corn belonged, and does now, to the defendant. The defendant claims that it belongs to the plaintiff, that he has tendered it back and offered to return it and that it belongs to him, the plaintiff........
“Now, the plaintiff claims that under all the circumstances there never has been a rescission of the contract.....Now, in the first place, was there an offer here to return these goods? Did the defendant, at the time he states, say to the plaintiff that the goods were not in accordance with the contract, in quality, and did he tender them back to the plaintiff by stating that they were there subject to his order, or words to that effect? There is no set phrase necessary to constitute the rescission of a contract, except that the buyer must offer to return them to the seller on the ground that they were not in accordance with the original arrangement in quality or otherwise.....I believe I have now covered these two grounds.....If there was an offer to rescind the contract on the ground of a defect in the quality, if done within a reasonable time, it makes no difference whether the seller accepted the offer or not, whether he takes the goods into his possession or not.”
In the first place, there was not sufficient evidence in the case to warrant these instructions. It has been seen that the defendant did not claim that he ever returned or tendered the goods to the plaintiff at his place of business, or that he whs relieved from so doing by any refusal of the plaintiff to accept them if tendered there. When the defendant says he told the plaintiff the com
The general principles of law involved in the rescission of contracts had been accurately stated in the earlier part of the charge; but it is the opinion of the court that, in giving the jury the more specific instructions above set forth, the learned justice inadvertently omitted to point out the distinctions and qualifications required by the facts and circumstances disclosed in the evidence.
Exceptions sustained.