81 Neb. 1 | Neb. | 1908
In August, 1903, the defendants, Simpkins and McCune, purchased from Mundt, the plaintiff, a second-hand steam traction engine, belting, and water wagon, for the sum of $225, for which they executed their promissory notes. Plaintiff brought suit on these notes in the county court of Greeley county, and from a judgment entered in favor of the defendants he appealed to the district court, where judgment again went in favor of the defendants. He brings this appeal.
Plaintiff’s petition was the ordinary one declaring upon negotiable paper. In their answer defendants allege that at the time they purchased the engine plaintiff represented it to be in good working condition and warranted it to be capable of performing the services for which they were purchasing it, to wit, running a 13 or 14 horse power separator, which separator, plaintiff informed them, he had seen, and knew the engine to be capable of operating; that he represented to them that originally the engine was a 12 horse power engine, but that he had procured the cylinder to be bored out, and that it was then equal to a 13 horse power engine, and guaranteed it to do the same work that a 12 horse power engine would do; that, relying upon these warranties, and not knowing to the contrary, they purchased the engine, and executed their notes to the plaintiff for the consideration agreed on. They further allege that at the time of making this purchase they were unskilled in the construction and working of steam engines, and so explained to the plaintiff, and relied solely upon the representations of the -plaintiff regarding the condition, capacity and power of
Upon what tlieóry the defendants expected to wholly defeat the plaintiff’s action by showing a rescission of the contract, and at the same time recover upon such contract by way of counterclaim, is not explained in their brief. The law is too well settled to need discussion that if a party elects to rescind a contract he cannot sue thereon to recover damages for its breach, and if he affirms the contract by suing for a breach he cannot thereafter rescind. An exception to the general rule exists in case where one expends money or material in the improvement of property before discovering the fraud by Avhich he was induced to purchase it. In such case he may rescind the contract of sale, return the property, and recover for what he has necessarily expended, as the vendor gets the benefit of the improvements made upon the property when the same is returned to him. Farris v. Ware, 60 Me. 482. In the case we are considering the circumstances all tend to show that the parties understood that no test of the engine was contemplated until it Avas taken to Greeley Center, wdiere the purchasers resided and were
As the verdict of the jury was in favor of the .defendants, it is evident that they found that the contract had been rescinded. This requires us to examine the answer filed and the evidence offered by the defendants in support thereof, to ascertain if the verdict can be upheld. In the first place it might be observed that there are'no facts alleged in the answer showing a rescission. The facts relied upon to show rescission by the defendants are stated in the following language: “That immediately upon discovering the defects set out the defendants notified the plaintiff in writing, at Utica, Nebraska, of the same, and that said engine was not the same as represented to be by him; that it would not do the work guaranteed by him, and that it was worthless to the defendants; that they could not or would not keep it or pay for it; that it was on the railroad right of way at Greeley Center, Nebraska, subject to his order, and that he could govern himself accordingly.” It is undoubtedly the better law that a sale of personal property with a warranty of quality, even without fraud on the part of the vendor, may be treated as a sale upon conditions subsequent, at the election of the purchaser, and in the event of a breach of 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; Milliken v. Skillings, 89 Me. 180, 36 Atl. 77. The right of rescission is limited to cases where the seller can be put substantially in the position which he occupied before the contract, and this makes it the duty of the buyer, who would rescind for breach of warranty for quality, to restore the seller substantially to his former position, and requires him to return or tender back to the seller whatever of value to himself or to the other he has received under it. As stated in Milliken v. Skill
The above quotation states with clearness and exactness the duty of a vendee who seeks to rescind on account of breach of warranty of quality, and, measured by this rule, the defendants’ answer is fatally defective, and their evidence does not in the least tend to cure the defects found in the answer. The only evidence offered upon the question of rescission was that of the defendant Simpkins. He testified that after testing the engine at Greeley Center he wrote and addressed a letter to the plaintiff at Utica, informing him of the failure of the engine to do the work for which it was purchased, and that the engine was at Greeley Center, on the railroad right of way, subject to his order. This letter was not deposited in the post office, but was given to the party who had the contract of carrying the mail sacks to and from the railway station, with a request that he should mail it on the mail car of the departing train. The plaintiff denies having received the letter. There is no presumption that it ever reached him,
We recommend a reversal of the judgment and remanding the cause for another trial.
By the Court: For the reasons stated in the foregoing' opinion, the judgment of the district court is reversed and the cause remanded for another trial.
Reversed.
