Continental Jewelry Co. v. Pugh Bros.

• Citation: 53 So. 324,168 Ala. 295
• Parties: CONTINENTAL JEWELRY CO. v. PUGH BROS.
• Decision Date: 06 July 1910
• Court: Supreme Court of Alabama

53 So. 324

168 Ala. 295

CONTINENTAL JEWELRY CO. v. PUGH BROS.

Supreme Court of Alabama

July 6, 1910

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Assumpsit by the Continental Jewelry Company against Pugh Bros Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Sayre and Evans, JJ., dissenting in part.

The following are the pleas alluded to in the opinion:

"(3) The consideration for the debt or demand, to recover which this suit is brought, was that the defendants on, to wit June 21, 1906, by a contract or agreement, ordered and agreed to purchase of and from plaintiff a certain lot of articles of jewelry, and was to pay therefor a certain amount of money, a part of which represents the amount for the recovery of which suit is brought. Defendants aver that they did not see said jewelry at the time of the making of said contract or agreement, and that the same was agreed to be sold by sample--that is to say, plaintiff's agent at the time thereof had certain jewelry, which said jewelry bought or agreed to be bought of plaintiff was to be substantially alike in character, and defendants aver that said jewelry delivered by the plaintiff to the defendants and for the price of which this suit is brought was not substantially like the said sample; and within a reasonable time after the delivery of the said jewelry to the defendants, and after a discovery by the defendants that said jewelry was not substantially like said sample, the defendants rescinded said contract or agreement, and thereafter offered to return said jewelry that the defendants had not disposed of, and to pay for that which had been disposed of; and defendants aver that they had held said jewelry so undisposed of subject to the orders of plaintiff, wherefore, they say that they are not indebted to plaintiff in any amount whatsoever.

"(4) The debt or demand for the recovery of which this suit is brought arose from a certain contract or agreement made on to wit, June 21, 1906, wherein and whereby the defendants ordered of and from the plaintiff a certain lot of merchandise or jewelry, and in payment of which the defendants promised and agreed that the amount of said order, to wit, $192, was payable in six equal installments, due 2, 4, 6, 8, 10, and 12 months from the date of the invoice, provided that the defendants send plaintiff promptly on the arrival of the jewelry their six acceptances for amount and time above mentioned, payable to the order of plaintiff; and it was agreed by and between plaintiff and defendants that said jewelry should be of substantially the same material and make as the other jewelry that was exhibited by the plaintiff's agent to the defendants. And defendants aver that they paid to the plaintiff the first two payments mentioned in said contract, and that the plaintiff delivered to the defendants said jewelry which was not of substantially the same material and make as the said sample; and, within a reasonable time after the defendants discovered that said jewelry delivered to them by the plaintiff was not of the same material and make as said sample, the defendants rescinded the said contract, and offered to return the plaintiff all of said jewelry that they had not disposed of, and to pay for that which they had disposed of, and have been ready and willing ever since to do so.

"(5) Same as 4 except that it alleges that the plaintiff's agent had certain samples at the time of the order, and represented that the said jewelry bought or ordered would be substantially of the same material and make, and with the further allegation that plaintiff had failed or refused to receive said jewelry so undisposed of.

"(6) Alleges the contract as in the other pleas, with the averment that the defendant bought the jewelry by sample, and that the jewelry which was delivered to him did not come up to the sample, but was inferior thereto, and that within a reasonable time after the discovery thereof by the defendant the defendant offered to return said jewelry to the plaintiff and has been ready and willing to do so ever since. Demurrers were interposed to said pleas because they failed to show when the defendants discovered that the jewelry was not like the sample, and how long after their discovery before they offered to rescind the contract."

The seventh demurrer being as follows: "Said plea shows that defendant retained, kept, or disposed of said jewelry or a part thereof after it was delivered to him, and therefore waived their right to rescind their contract."

Troy, Watts & Letcher, for appellant.

Hill, Hill & Whiting, for appellee.

McCLELLAN J.

The action is on accepted bills of exchange for goods sold by the appellant to appellees. The sale was by sample, and the intent of the pleader, as indicated by pleas 3 to 6, inclusive, was to assert a rescission because, to generally state it, the goods received did not substantially come up to the sample, in material, make, etc. The report of the appeal will contain a summary statement of the matter set up in these pleas.

In the early case of Burnett v. Stanton & Pollard, 2 Ala. 181, 189, it was said: "An offer to return the chattel in a reasonable time, on the breach of warranty, or where a fraud has been practiced on the purchaser, is equivalent in its effect upon the remedy, to an offer to accept by the seller, and the contract is rescinded. But the vendee, in such case, must act with promptness, and, upon discovering that the subject-matter is not such as was contemplated, he must offer to return it. * * * But a contract cannot be rescinded, without mutual consent, where the circumstances have been so altered by a past execution that the parties cannot be put in statu quo, for if it be rescinded at all, it must be in toto. * * * If the vendee neglect to return goods, * * * but keep them and treat them as his own, by putting them up for sale, or exercising other acts of ownership over them, he cannot afterwards reject the contract."

Burnett v. Stanton & Pollard, supra, in the particulars quoted, has been followed, literally or in principle, in these subsequent decisions: Knight v. Turner, 11 Ala. 636; Ward v. Reynolds, 32 Ala. 384, 393; Stephenson v. Allison, 123 Ala. 439, 447, 26 So. 290; Hayes v. Woodham, 145 Ala. 597, 40 So. 511; Eagan Co. v. Johnson, 82 Ala. 238, 2 So. 302-- among others.

In Stephenson v. Allison, supra, it was, by way of approving quotation, said: "He cannot hold onto such part of the contract as may be desirable on his part and avoid the residue;...