57 Fla. 111 | Fla. | 1909
The defendtants in error sued the plaintiffs in error in the Circuit Court for Jackson County, as set forth in the declaration as follows:
“Now come the plaintiffs aixd sue the defendants and for cause of action say: That whereas the said defendants bargained and sold to the plaintiffs a certain horse for $180.00, which said horse, the said defendants, by their agents who sold said horse, represented said horse to be sound and all right, when in truth and in fact said horse was not sound and not alright, but was so physically afflicted in his legs and feet that he was without value and useless and worthless to the plaintiffs for the purpose which the plaintiffs had purchased him, wherefore plaintiffs sustained damages by reason of said misrepresentations made to the said defendant in the sum of $180.00.
2. Plaintiffs further sue the defendants for that whereas the said defendants, by their agents, sold the
3. Plaintiffs further sue the defendants for that whereas the said plaintiffs were in peaceful possession of a certain buggy of the value of $75.00 and the said defendants of their own voltion and without the knowledge or consent of the plaintiffs and without authority of law, wrongfully took possession of said buggy and converted the same to their own use and benefit and deprived the plaintiffs of the use and benefit of the said buggy, wherefore plaintiffs sustained a loss and damages by reason of the wrongful acts of the said defendants in the sum of. $75.00, the value of said buggy.
All of which amounts are long past due and unpaid, wherefore plaintiffs sue and allege their damages in the sum of $500.00.”
The defendants filed a plea of not guilty, upon which issue was joined. The jury rendered a verdict in favor of the plaintiffs for $121, upon which final judgment was
The court limited recovery to the second count of the declaration, in a charge to the jury, as follows: “Now, the court charges you that if the plaintiffs bought a horse from the defendants and paid $120.00 in cash, and that at the time the trade was made, the defendant or the defendants’ authorized agents represented that the horse was physically sound and fit to do certain work, and that- such representations were believed by plaintiffs and induced plaintiffs to purchase the horse and part with the money, and such representations were false and untrue, and the defendants or defendants’ agents knew at the time they were false and untrue, and made them to induce the purchase of the horse, then the plaintiffs upon the discovery of the defective condition of said horse, if any existed, wóuld have a right to rescind the contract, provided they rescinded it in reasonable time and demand back the money they if any had paid, and if you find from the evidence these were the facts, then the plaintiffs would be entitled to recover undér the second count of the declaration, and the amount of money if any which they paid to defendants at the time they purchased the horse. That is practically all the law there is to this case.”
The errors assigned complain of- this instruction and the insufficiency of the evidence to support the verdict.
This case was tried without proper issues. The court eliminated the .first and third counts. The second count was founded on contract, and the plea of not guilty is applicable in actions for wrongs independent of contract. The plea put in issue none of the allegations set forth in the second count of the declaration. If the defendants would deny the fact of the sale of the horse or the warranty thereof, they should plead non-assumpsit, or a
The plaintiffs did not move to strike the plea of not guilty, and all the facts were put in evidence without objection and without reference to the pleadings. ,It appears from the evidence that the plaintiffs, as one transaction, bought of the defendants a horse and buggy, paying therefore the sum of $120.00 cash and giving their note and contract for $138.00 the balance due as follows: “$138.00. Chipley, Florida, March 13, 1907.
On or before the first day of October, 1907, we promise to pay to C. F. & A. C. Mizell, or order, one hundred and thirty-eight dollars at their office in Chipley, Florida, for value received, with interest at 8 per cent from date until paid, together with reasonable attorneys fees and all other expense incident to the collection of the same, whether by suit or otherwise, including recording fees. •
This note is given for the purchase price of one bay mare about 6 years old also one J.. G. Smith and Son top buggy, the title to which property shall remain in C. ’ F. & A. C. Mizell until this note is fully paid, and said C. F. & A. C. Mizell may either in person or by agent, at any
The contract of purchase, being entire, the plaintiffs could not rescind as to part and affirm as to the remainder. While they claim to' have returned or offered to return the horse to the defendants, the evidence shows that the plaintiffs retained possession of the buggy and never returned or offered to return it to the defendants in rescission of the contract, the buggy not being worthless. This being so, there was no rescission, and the plaintiffs could not recover the price paid while they retained a substantial portion of the property purchased by them. 24 Am. & Eng. Ency. Law (2nd ed.) 1110; Hancock v. Tucker, 8 Fla. 435; McCarthy v. Ellers, 94 N. Y. Supp. 1109; Aultman v. McFallon, 11 Fed. Rep. 836; Brockhaus v. Schilling; 52 Mo. App. 73.
The charge of the court, therefore, is erroneous, as being inapplicable to the evidence; and the verdict is not supported by .the evidence. Whatever may have been the right of the plaintiffs to recover damages sustained because of the breach of warranty, they could not recover by way of rescission' for a return of the price paid unless they placed the defendants in statu quo by a return of the horse and buggy. It is true the defendants took possession of the buggy after the plaintiffs had retained and used the same for seven months, but no contention is made that it was delivered or accepted in rescission of the contract. The buggy was retaken by the defendants after default in payment of the note, and “without the knowledge or consent of the plaintiffs,” as is alleged in the third count of the declaration.
If there is to be another trial of this case, we deem it proper to say, in view of other phases of the evidence,
Whether an offer to rescind a sale of chattels and return them to the seller was made within a reasonable time is, in general, a question of fact for the jury. Andrews v. Hensler, 6 Wall. (U. S.) 254; Barnett v. Stanton, 2 Ala. 195; Doane v. Dunham, 79 Ill. 131; Churchill v. Price, 44 Wis. 540. Where the facts are not disputed, however, the question of what is a reasonable time in which to rescind a contract is a question for the court to decide, and the time may be such that the court will declare it to be reasonable or unreasonable as a matter of law. Bacon v. Green, 36 Fla. 325, 18 South. Rep. 870; Johnson v. Whitman Agricultural Co., 20 Mo. App. 100; Woods v. Thompson, 114 Mo. App. 38, 88 S. W. Rep. 1126.
The judgment is reversed and a new trial ordered.