145 Mo. App. 148 | Mo. Ct. App. | 1910
Plaintiffs alleged an attempt to rescind a written contract of sale of a stallion by offering to return the horse, and demanding the purchase price, stating that such offer and demand were refused. They thereupon brought this action for the purchase price, the petition containing an offer to return.
It appears that defendant sold the' stallion for breeding purposes at a public auction to plaintiff Sturgis, and that certain representations of warranty were made by the auctioneer which afterwards, when the purchase price was paid, were reduced to writing, to the effect following: That the horse would get sixty per
cent of mares with foal with proper care, treatment and certain exercise; and that if he failed to fulfill the warranty defendant would take him back and return purchase money.
It is claimed that the stallion failed to meet the requirements of the contract and that he was a great part of the time unable to copulate with mares and that when he did, he failed in getting more than twenty per cent of them with foal, being forty per cent less than was agreed upon in the contract.
There were several questions presented at the argument; among them, whether the contract was personal with Sturgis and non-assignable by him; and whether a joint cause of action could result to Sturgis and Thompson.
But we think the evidence conclusively fails to establish a proposition which, in this State, is the foundation of the right of rescission. That is, a .tender of the property back to the seller, promptly on discovering the defect which is relied upon for rescission. [Robinson v. Siple, 129 Mo. 208; Taylor v. Short, 107 Mo. 384; Estes v. Reynolds, 75 Mo. 563; Kirk & Co. v. Seeley, 63 Mo. App. 262; Walls v. Gates, 6 Mo. App. 242.]
The evidence not only fails to show a tender of the stallion to defendant by plaintiffs,, or either of them, but it affirmatively shows that no tender was made. It does appear that in October, after the sale, in a conversation between plaintiff Sturgis and defendant, he told defendant that plaintiff Thompson wanted him to take the horse back. Within a day or two they met again and Sturgis again said that Thompson was dissatisfied and wanted to .turn the horse back. Defendant insisted that the horse was “all right”; that he had no connection with Thompson, and that he, Sturgis, had better settle with Thompson as he had nothing to do with him. When these conversations occurred the horse was not at hand, was not in several miles of where the parties were.
There are several insurmountable objections to the foregoing constituting a tender. In the first place, as there was no actual tender, we must look to see if there was anything which excused it. We cannot find that there was. The most the evidence shows is that plaintiffs were dissatisfied with the horse and wanted .defendant to take him back, asked him to do so. But it will be ob
Another objection is that at the time plaintiff Sturgis asked defendant to take the horse back, he did not own him and had no control over him and it was not within his poAver to produce him, if defendant had requested him to do so. He had sold the horse several months prior to this plaintiff Thompson. There is no evidence that the latter had made Sturgis his agent to make a tender.
Again, Thompson, who owned the horse and had, of course, full control over him, never asked defendant to take him back. He so stated in his testimony. And necessarily he could not have done so, since, at that time, there was no contractual relationship existing between him and defendant. It was not until several months afterward that Sturgis assigned to Thompson one-half interest in the contract between him and defendant.
The only tender in the case is that made by the petition. But that will not suffice, since until there is a tender there is no cause of action founded on a rescission, and, of course, a cause of action must exist before a right accrues to sue upon it. [Althoff v. Transit Co., 204 Mo. 166; Implement Co. v. Ellis, 125 Mo. App. 692; Cahn v. Reid, 18 Mo. App. 115, 123-126; Walls v. Gates, supra.]
There is yet another fatal objection to maintaining the action, and that is that plaintiff Thompson stood the horse for breeding purposes for hire for two seasons
It is suggested that Thompson was justified in using the horse for breeding purposes in order to minimize damages. Undoubtedly instances could occur where it would be proper to protect the owner from unnecessary damage. But that is not this case, nor do the authorities cited by the plaintiffs sustain them. In the case of Faust v. Koers, supra, the vendee, who kept the horse after a tender had been refused, did not use him as his own. He occasionally took him out of the stable for exercise, merely as a means of preserving his health and strength. We have cited the case as supporting our conclusion that if the vendee uses the property as his own, he waives the tender and right to rescind.
But it was argued that the contract gave Sturgis or his. assignee a certain period in which to exercise the
The judgment is reversed.