51 Mo. App. 75 | Mo. Ct. App. | 1892
Lead Opinion
In this action the plaintiff seeks to recover of the defendant the sum of $425, the same being the purchase price of a hot-air furnace paid by the plaintiff to the defendant, which furnace the defendant had furnished to the plaintiff and had erected in his house under a contract of warranty hereafter stated. The case was tried in the circuit court without a jury, and there was a verdict and judgment for the plaintiff in the sum of $430.26, from which the defendant prosecutes this appeal.
The petition states, in substance, that the defendant entered into a contract with the plaintiff on December 1, 1889, whereby the defendant agreed “to erect and build in a certain dwelling owned by the plaintiff * * * a Reynolds furnace of a size and pattern sufficient to heat such dwelling to a temperature of seventy degrees when the thermometer stood at zero out of doors;” that, in consideration of this agreement, the plaintiff agreed to pay the defendant for the
“St. Louis, Mo., January 1, 1890.
“ George F. Tower bought of G. A. Pauly:
“* * * December, 1890, one Reynolds furnace, $425.
“Paid, February 3, 1890. Gr. A. Pauly.
“I herewith guarantee the above furnace to warm your house to seventy degrees when the thermometer is zero, and I will further promise that, if anything about the furnace is not understood, and any alteration that maybe necessary to accomplish the above (heating in zero weather) will be done free of charge.
“Gr. A. Pauly.”
The petition then avers that the defendant “did build in said house a Reynolds furnace, but that the same was insufficient and incapable of heating' said dwelling to seventy degrees in zero weather, or of heating the same to such a temperature as to make such house habitable in temperate winter weather, and that the same wholly failed so to heat ¡said house, and was worthless to plaintiff.” It then avers that, on the third of February, 1890, the plaintiff paid to the defendant the said $425 as he had agreed to do; that, before the institution of this suit, plaintiff demanded of the defendant that said furnace should be so altered that the same would heat said dwelling, as defendant had agreed it should do, but that the defendant failed and refused to so alter the same, whereupon the plaintiff, within a reasonable time, tendered said furnace back to the defendant, and is still ready and willing to return the same; and that, by reason of the breach of the said contract by the defendant, plaintiff has been damaged in the sum of $425; “wherefore, plaintiff prays judgment against the defendant for $425, with interest thereon at the rate of six per cent, per annum
The answer was a general denial merely.
It is perceived that the foregoing petition proceeds upon the theory of a sale of a chattel with an express warranty, and of a rescission by the vendee for a breach of the warranty, exercised within a reasonable time. The late supreme court commission in the case of Branson v. Turner, 77 Mo. 489, changed our law on the subject of sales, so as to introduce this principle, which, contrary to the law of England, is the law of •some of the American states, that, where there is a breach of warranty, the vendee may rescind the contract and return, in a reasonable time, the thing sold; or he may retain it and recover damages for the breach; and, where the purchase price has not been paid, he may defend as to the whole if he has rescinded the ■contract, or fro tanto, if he has retained the chattel. "The petition, it is perceived, seeks to recover the entire purchase price paid for the furnace, with interest from ■date of payment, on the theory of a rescission by the plaintiff within a reasonable time after the defendant had, in pursuance of his undertaking, endeavored to make the furnace heat the plaintiff’s house to a temperature of seventy degrees when the thermometer was at zero on the outside.
Such being the theory of the action, the plaintiff introduced evidence tending to show that, in the autumn of 1889, he, through his father, entered into an oral agreement with the defendant for the construction of the furnace in a house which the plaintiff was then building; that this agreement embodied the warranty which afterwards was reduced to writing, as above stated; that in pursuance of this agreement the defendant, in the autumn of 1889, set up the furnace in the house and prepared it for use; that, owing to the fact
It is true that the parties seem to have tried the case upon the theory, that the contract might be treated as a contract of sale, and the warranty as a mere warranty of the quality of a chattel sold and delivered; and, therefore, there is, of course, danger in making our decision turn upon this point alone. But my opinion is that the instruction prayed for reaches to any matter that operates to defeat the action, whether it was thought of by the opposing counsel or by the judge
II. I am also of opinion that, as mere matter of law, stating the evidence most favorably for the plaintiff, the court should have held that the offer to return the furnace had not been made by the plaintiff within the reasonable time required by the rule of law on the subject. That rule is conceded to be that the vendee •of a chattel, where there is an express contract of warranty, or where it is sold by sample, is entitled to a reasonable time after receiving it to ascertain whether or not it complies with the warranty, or corresponds with the sample, before making his election to reject it, and rescind the contract of sale by tendering it back to the vendor. Benjamin on Sales [Ben. Ed. 1888] p. 864, and cases cited. It is also unquestionable thatthe general rule is that what will be a reasonable time will be a question of fact for a jury, and not a mere question of law for the judge. Doane v. Dunham, 79 Ill. 131; Boothby v. Scales, 27 Wis. 626; Hickman v. Shimp, 109 Pa. St. 16; Stone v. Browning, 68 N. Y. 604; Pierson v. Crooks, 115 N. Y. 539; s. c., 12 Am. St. Rep. 831; Cohen v. Pemberton, 53 Conn. 221; s. c., 55 Am. Rep. 101. But it is believed that these decisions mean nothing more than that this question must be a question of iact for the jury within certain limits; which limits are
An examination of many of the decisions which bear upon this question will show that, while the purchaser is allowed a reasonable time to make an examination of the goods for the purpose of seeing whether they comply with the warranty or correspond with the sample, yet, when this reasonable time has elapsed, if he elects to rescind, he must act promptly. I will quote a few judicial expressions on this subject. “It is,” said Andrews, J., “the duty of a purchaser to act promptly in making an examination of goods sent upon his order, to see whether they comply therewith, and to give prompt notice to the vendor of their rejection, if found defective, if he intends to avail himself of that remedy.” Pierson v. Crooks, 115 N. Y. 539, 551; s. c., 12 Am. St. Rep. 831, 838. The court in this case refer to several old cases, where this principle was laid down in similar language. Thus, in Fisher v. Samuda, 1 Camp. 190, 198, it was
Some of the early cases afford precedents which justify the conclusion that the delay, which, on the most favorable interpretation of the evidence, the plaintiff allowed to occur before offering to return the furnace, was an unreasonable delay as matter of law. In Fisher v. Samuda, 1 Camp. 190, 199, the subject of the sale Was beer, to be delivered for shipment to Gibraltar in the following autumn. It was discovered in July to be of bad quality, and unfit for the purpose intended, but the earliest notice of this fact given to the vendors was in December. Lord Ellenborough said that ‘1 under these circumstances the plaintiff must be presumed to have assented to its being .of good quality, and to have acquiesced in the due performance of the contract on the part of the defendants.” In Milnor v. Tucker, 1 Car. & P. 15, a person contracted to supply a chandelier sufficient to light a certain room. The purchaser kept the chandelier six months and then returned it. It was held that he must pay for it, although it was not according to the contract.
But we need not extend precedents upon this question, for it must be' conceded that each case must rest largely upon its own facts. In the present case the question is to be determined by a contract which not only embodied the warranty already recited, but which gave to the defendant a reasonable opportunity to make any alteration which might be necessary to cause the furnace to heat according to warranty. This is our construction of the language of the warranty. It was a warranty that the furnace would heat the house to seventy degrees, when a thermometer was at zero outside. It was a further obligation on the part of the
III. But there is another reason which is even more fatal to the right of the plaintiff to recover on the theory on which this action is brought, and that is that, before the action was brought, he disabled himself from returning the furnace in the condition in which it was furnished to him, even if it could be supposed that it could be treated as a mere chattel sold and delivered. Twenty-two hundred brick, all that were used in the structure, were consumed by the plaintiff in erecting-the furnace which he substituted in place of this one. Whether this was done by the workman without his orders is totally immaterial, for he had control over the workman, and the power to prevent him from using the brick if he had seen fit. This brings the case within a principle which is applicable not only to the rescission of contracts for the sale of chattels, but also to the rescission of every other species of contract, and that is that there can be no rescission, unless the thing received is tendered back or restored in toto, and the vendor can be put in statu quo. I shall quote a few judicial expressions on this point. Lord Ellienborough, in Hunt v. Silk, 5 East, 449, says: “Where a contract is to be rescinded at all, it must be rescinded in toto, and the parties put in statu quo.” He also said, speaking with reference to the case which he had under consideration: “If the plaintiff might occupy the premises two days beyond the time when the repairs were to have been done and the lease executed, and yet rescind the contract, why might he not rescind it after a twelve-month on the same account? This objection cannot be gotten rid of. The parties
Applying these principles to the undisputed facts in the case before us, it is perceived, following the language last quoted, that the plaintiff received and used the article in question, and derived a benefit from
These observations make it clear that the plaintiff,, in bringing his action to recover the purchase price as-money had and received by the defendant upon a consideration which has failed, has mistaken the theory of' his action; that, by electing to retain the furnace as-long as he did, and by disabling himself from restoring-it in its entirety, he waived his right of rescission, and confined himself to an action for a breach of the-warranty. I am, therefore, clearly of opinion that the-petition does not state, nor does the evidence -prove,, any right of recovery upon the theory of a rescission-of a contract of sale; and that for this reason the-judgment of the circuit court should be reversed, and the cause remanded. The plaintiff may, if so advised,, amend his petition and proceed on the warranty..
Concurrence Opinion
(concurring). — I concur in reversing the judgment on the ground that on the evidence-the court should have declared, as a matterof law, that plaintiff did not exercise his right of rescission within a. reasonable time. Mere inconvenience of making a test may be evidence of the fact, that, although a considerable period of time had elapsed, yet there was not such a complete acceptance of the chattel as would bar a recourse on the warranty. But mere inconvenience of examination can, in no case, extend the period within which the right of rescission may be exercised for years, giving to the vendor nothing for the intermediate-use of the chattel. What we said in Henry Gaus Mfg. Co. v. Magee, 42 Mo. App. 314, 315, is in point on that head.
I doubt whether we are justified in reversing the-judgment on the ground that the furnace in question was not a chattel, although the evidence points strongly in that direction. That the court treated the furnace-in question as a chattel, is not assigned for error, nor could it be thus assigned since both parties tried the case on that theory. I also doubt whether the mere-fact, that plaintiff could not on the day of trial return the labor and brick which defendant used in constructing the furnace, is necessarily fatal to his recovery. Those items were capable of separation from the furnace as independent items. The plaintiff had tendered the entire furnace, inclusive of brick, to the defendant prior to the institution of the suit, and the court, as a computation shows, allowed to the defendant in its judgment the price of labor and brick as per his own valuation, thus putting him in statu quo as to those items. But as to the wear of the furnace, and its depreciation in value, by its use for two winters, the court could not and did not put the defendant in statu quo.