Ungerer & Co. v. Louis Maull Cheese & Fish Co.
134 S.W. 56
Mo. Ct. App.
1911
Check Treatment
CAULFIELD, J.

(after stating the facts). — 1. Defendant asserts that the court erred in refusing to allow defendant’s expert witness, who had made a chemical analysis of one barrel, to testify as to the contents of it. Reviewal of the court’s action involves an inquiry into the defendant’s right to show upon the trial, under the circumstances of this case, first, that the eighteen barrels delivered contained an article different in kind from that called for by the contract, and second, that the thirty-two barrels sold in New York did not contain the same article described in the contracts. For undoubtedly the proof offered had a tendency to prove not only that the eighteen barrels shipped contained a mere imitation of “gum tragacanth powdered,” but that the thirty-two barrels sold in New York likewise did; for plaintiff’s evidence disclosed that the contents of all the fifty barrels were exactly the same. The admissibility of the evidence as proof of the contents of the eighteen barrels should in turn be considered, first, as to whether such proof is proper in order to wholly defeat plaintiff’s right of recovery, and second, whether it was proper in support of defendant’s counterclaim. Whether it was admissible for the purpose of wholly *105defeating plaintiff’s right of recovery depends, we think, upon the answers to he given to the following questions : Was a warranty as to kind to he implied from the use in the contracts of the descriptive words “gum tragacanth powdered?” Could defendant, after accepting part of the goods without knowing of their insufficiency under the contract, reject future shipments? Did the objection that the goods delivered were not of the contract description come too late? Did the fact that defendant rejected upon the ground of defect in quality prevent it relying upon the after-discovered difference in kind? We have no difficulty in answering the first question in the affirmative. The testimony in this case shows that “gum tragacanth powdered” is distinctly descriptive of a particular article, according to a known mercantile classification. The contract-was not as to specific goods, but as to any goods, of a particular,kind; and in such case the designation used is a condition going to the essence of the contract. “In such cases the description of the goods is shown by the terms of the order, and the accuracy of the description is necessarily a condition, as it is for goods of that kind only that the buyer contracts.” [Benjamin on Sales, p. 608 (5 Ed.).] To breach such a condition “is as if A. should sell a horse to B. and deliver a cow instead.” [Catchings v. Hacke, 15 Mo. App. 51; see, also, Whitaker v. McCormick, 6 Mo. App. 114; Gaus v. Magee, 42 Mo. App. 307.] It was a distinct breach of this implied warranty or condition if plaintiff delivered, instead of the “gum tragacanth powdered” as contemplated by the contract, an article which “was not gum tragacanth powdered but a substitute which bears such a close resemblance to gum tragacanth powdered that the usual and casual examination of the goods by sight and feeling would not detect the defect,” as defendant distinctly-offered to prove by the evidence excluded. We have carefully considered in this connection the suggestion made by plaintiff’s counsel in his brief, that the evidence in *106the case conclusively shows that the parties received the identical article they contracted for, whether it was properly called gum tragacanth-or not; but we cannot agree with it. There may have been evidence to that effect, but to say the least, it may be equally inferred from the evidence that a clever substitute was palmed off upon defendant for real gum tragacanth. But plaintiff insists that the sale was by sample and that if the goods furnished or tendered corresponded with the sample, it was sufficient. This contention could pertain only to the seven barrels remaining undelivered under the first contract. The second contract did not contemplate a sale by sample. But we do not understand that a sale by sample relieves a seller from the obligation assumed by him in selling by description. If the sample is an imitation not discoverable by mere inspection, it does not follow that the bulk which follows may also be an imitation of what the contract calls for.

And the second question can also be answered in the affirmative. In Morrison v. Leiser, 73 Mo. App. 95, 98, the court held that a vendee who agrees to purchase goods of a certain quality to be delivered in installments (as in the case here), will be allowed to revoke the order for future shipments because the prior shipments did not meet the requirements of the contract of sale. The language used by the court in the opinion is peculiarly applicable to the case at bar. “It seems to us that the agreement to sell, as in the case at bar, is one executory contract; that before plaintiffs can be allowed to recover they must show a substantial compliance with the terms of said contract; and if, during the delivery of the goods, the vendor makes substantial breach of any of its conditions as to the quality of goods, then the vendee may rescind the contract as to such future deliveries and decline to take any more goods even though such latter instalment may, on inspection, be found equal in quality to the terms of the contract.” There is no pretense that the defendant knew at the *107time of its acceptance of the goods that they failed to comply with the contract, so that the element of its having waived its right to refuse to go on with the contract by knowingly and voluntarily accepting inferior goods is not in the case.. The trial court in sustaining the objection to the question stated that it did so on the authority of Manley v. Crescent Novelty Mfg. Co., 103 Mo. App. 135, 77 S. W. 489. That case declared that in determining to refuse property and rescind the sale by tendering it back to the vendor, the purchaser is required to act within a reasonable period, and that where the period is so long that its unreasonableness is apparent, the court may declare it unreasonable as a matter of law. The facts in this case are essentially different. That case was one where the vendee had attempted to rescind the contract as to the goods already delivered and paid for and to recover back the purchase price paid therefor. In this case the vendee is resisting an attempt to make it pay for goods which it has not received and which plaintiff can compel it to pay for only by showing compliance on plaintiff’s part with the contract.

The present case can hardly be said to involve the doctrine of rescission at all. It is rather a case where the purchaser claims to be excused from further performance because of the prior breach on the part of the seller. Rescission involves restoring the status quo of the parties and that is impossible in the present case, as it was in Morrison v. Leiser, supra, and in Grafeman Dairy Co. v. St. Louis Dairy Co., 96 Mo. App. 495, 70 S. W. 390, where the right to refuse later instalments was upheld in cases like the present. This brings us to the correlated question of whether defendant’s basing its refusal to continue with the contract upon an untenable ground estopped it to set up a proper ground when sued for its alleged breach of contract. It has been held in New York and Michigan that where a buyer objects to a tender on specified' grounds all others are waived, *108and the seller in order to recover need only prove compliance with the contract in the particulars to which the objections related. [Littlejohn v. Shaw, 159 N. Y. 188; Ginn v. Clark Co., 148 Mich. 84.] But those decisions seem contrary to principle. We see no reason why a buyer,. having more than one reason for rejecting goods, conclusively admits, by assigning one, that there is no other. Such action on his part might be evidence that there is only the one objection he specifies, but that is all that can be said. The rule laid down in those cases is not the rule in this state as to other contracts and we do not see why it should be applied to contracts of sale. In Hayden v. Grillo, 26 Mo. App. 289, it was held that the fact that the defendant refused to comply with his agreement to pay commissions to a real estate agent upon another ground did not do away with the necessity, on the part of the plaintiffs, of showing a performance of their undertaking on their part, in order to recover the price of their services. Then too, in the cases mentioned, the rule was laid upon the ground-of waiver, which necessarily presumes knowledge of the defect to which the waiver relates, while in the case at bar there was no knowledge on the part of defendant of the defect now being discussed at the time when the other ground was assigned.

We conclude that the evidence excluded should have been admitted in evidence, as tending to prove a fact going to wholly defeat plaintiff’s right to recover.

In our judgment the evidence was also admissible under defendant’s counterclaim. It is immaterial that defendant sold the eighteen barrels at an increased price, as plaintiff suggests. [Brown v. Emerson, 66 Mo. App. 63.]

The evidence excluded was also admissible for the purpose of determining whether the alleged re-sale in New York was a proper criterion of the market value of the thirty-two barrels. We find no difficulty in holding that in order that such a sale should have the effect *109desired it should be a sale of the thing described in the contract and not some inferior substitute.

For the error noted the judgment of the court in favor of the plaintiff upon its alleged causes of action and upon the counterclaim is reversed and the cause remanded.

Reynolds, P. J., and Nortoni, J., concur.