Ebner v. Haverty Furniture Co.
| Decision Date | 08 April 1924 |
| Docket Number | 11458. |
| Citation | 122 S.E. 578,128 S.C. 151 |
| Parties | EBNER v. HAVERTY FURNITURE CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; Wayne F. Rice, Judge.
Action by H. T. Ebner against the Haverty Furniture Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Nathans & Sinkler, of Charleston, for appellant.
Ernest L. Visanska, of Charleston, for respondent.
Action for rescission of a contract of sale of certain furniture and for damages. The plaintiff's complaint grows out of the following facts, which he alleges and offers evidence to sustain:
In January, 1921, the plaintiff purchased a suite of furniture from the defendant, and paid therefor $990; he installed it in his home and continuously used it up to February, 1922; at the latter time a fire in the plaintiff's home caused damage to the furniture; when he undertook to have it repaired, he discovered for the first time that the furniture was not solid mahogany, as the defendant had represented it to be; thereupon he tendered it back to the defendant in its damaged condition, claiming a rescission of the contract and a return of the purchase price, which he had paid to the defendant. This claim and the demand were refused by the defendant, whereupon the present action was commenced.
At the close of the evidence the defendant moved for a nonsuit upon the ground "that where the goods have been damaged so that the status quo cannot be restored, no rescission of a contract can be made."
It was conceded by the plaintiff that, while the furniture was in his possession, it was damaged by water with which his house had been deluged in extinguishing a fire; in fact he so alleges in his complaint, and testifies that it was so damaged as to require scraping and repolishing and revarnishing.
Where a sales contract involving personal property has been fully executed by the payment of the purchase price and the delivery of the property, and the buyer claims that the property purchased did not come up to the representations of the seller as to quantity or quality, he has the choice of the following remedies: (1) He may, upon discovery of the misrepresentation, within a reasonable time which the law allows for an inspection, return or offer to return the property, and demand a rescission of the contract and a return of the purchase price paid by him; or (2) he may retain the property, and demand damages for a breach of the contract.
These remedies are in a sense inconsistent with each other; the one assuming that the title to the goods has never departed from the seller, and the other, that it has passed to the buyer although they depend upon the identical state of facts; and it may be that under the principles announced in McMahan v. McMahon, 122 S.C. 336, 115 S.E. 293, they may not be so inconsistent as to demand the application of the principle of election of remedies.
"While the buyer may, in the event of fraud or default in performance by the seller, at his election stand on the contract and bring an action for damages, or avoid the contract and maintain an action for recovery of the price, he cannot treat the sale as void in order to recover the price and valid in order to recover damages, the remedies being inconsistent." 35 Cyc. 606.
The remedy of rescission, when available, is as exact in its results as human arbitrament could possibly devise, the seller takes back his goods, and buyer his money. It is manifest that this result would not be obtained, unless both parties could be restored to the status quo ante; and that this could not be done if in the meantime the condition of the goods has been changed.
To allow the buyer to turn back upon the hands of the seller property in a damaged condition, for which damage the seller was in no wise responsible, and recover the amount of the purchase price, would be to saddle the loss of such damage upon the seller; a manifest injustice.
The use of the furniture for more than a year was necessarily accompanied by some damage; besides ordinary wear and tear there...
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...that a party seeking to rescind a contract is in duty bound to restore the status quo as nearly as may be practicable. Ebner v. Haverty, 122 S.E. 578, 128 S.C. 151, cases cited therein. But, assuming that a return of the unearned premium is not required under the provisions of the "old form......
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...he may seek his expectancy damages under the contract or rescission and restitution of the contract price. Ebner v. Haverty Furniture Company, 128 S.C. 151, 122 S.E. 578 (1924); see S.C.Code Ann. § 36-2-711; S.C.Code Ann. § 36-2-721. A plaintiff suing in tort may, despite the fraud, elect t......
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... ... remedies, as expressed in the [133 S.C. 377] case of Ebner ... v. Haverty Co., 128 S.C. 151, 122 S.E. 578: ... "(1) He [the buyer] may, upon discovery of ... Eureka Paint Co. v. Bennett Hedgpeth Co., 85 S.C ... 486, 67 S.E. 738; Maxwell v. Furniture Co., 127 S.C ... 225, 120 S.E. 834, and case cited; Williston Sales (2d Ed.) § ... 215; Harris ... ...
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