German-American Provision Company v. Jones

• Decision Date: 18 December 1905
• Citation: 87 Miss. 277,39 So. 521
• Court: Mississippi Supreme Court
• Parties: GERMAN-AMERICAN PROVISION COMPANY v. JAMES A. JONES ET AL

39 So. 521

87 Miss. 277

GERMAN-AMERICAN PROVISION COMPANY v. JAMES A. JONES ET AL

Supreme Court of Mississippi

December 18, 1905

November 1905

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

The German-American Provision Company, the appellant, was the plaintiff in the court below; Jones and others, appellees doing business under the firm name of Jones Brothers &amp Company, were defendants there. From a judgment in favor of defendants, plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

Alexander & Alexander, and George B. Power, for appellant.

The theory of defendants is that, inasmuch as the lard shipped was only compound lard, instead of pure leaf lard, defendants, upon paying the price of compound lard, have a legal right to hold the same and convert it to their use, in spite of the constantly expressed request of the plaintiff for return of the lard. The defendants have proceeded all along under the idea that the lard was compound--that is, not pure leaf lard damaged--but of a different kind from that ordered. The claim of the plaintiff was that the lard was of the kind ordered, and if defendants did not find it merchantable, it was because it was pure leaf lard which had suffered damage. Inasmuch as the plaintiff was entitled to have the jury pass upon its side of the case, it had the right to have the books of Jones Brothers & Company shown in evidence, in order that its theory that the lard was really pure leaf lard (proof of which had been made) passed upon by the jury, and therefore they should have been informed of what Jones Brothers & Company had realized on it. If the lard was of a different grade from the kind ordered, then, as claimed by defendants, they had a legal right to pay the market value of such inferior grade and keep the same. We admit this. But if, on the other hand, the lard was damaged lard of the kind ordered, plaintiff had a legal right to show what Jones Brothers & Company realized on it.

Williamson, Wells & Peyton, for appellees.

Under well-recognized rules and numberless decisions of the question, our court will not disturb the finding of the jury on disputed questions of fact, especially in a case where the finding is so well supported by the evidence as is true in this case. If it be true, as was found by the jury, that the appellant did in fact bind and obligate itself to sell and deliver to the appellees a large quantity of pure leaf lard at a stipulated price, and did in fact fail to keep its agreement, but, on the contrary, did in fact, as the jury found, ship and deliver to the appellees a large quantity of inferior or compound lard, what would be the legal aspects of the case?

There are several well-known remedies for breach of warranty such as occurred in this case. Rescission is one of them, but it is only one of them. Appellant's counsel in this case conducted the case throughout upon the idea that this was the only remedy, and it is the only one alluded to in their brief; but the law as to such breaches of warranty, as laid down in 30 Am. & Eng. Ency. Law (2d ed.), 190, is as follows: "When the warranty is one relating to the quality of the goods sold, the buyer has his choice of three remedies: If the title has not passed to him and the contract is still executory, or if the warranty was fraudulently made, he may rescind the contract and refuse to accept the goods; or, if he has already received them, he may return them or notify the seller that they are held subject to his order; if the title has passed to the buyer, he may bring his action to recover damages for the breach, or he may set up such damages by way of set-off or recoupment when sued for the purchase money." The text is supported by citations to a large number of reputable authorities.

The doctrine on the subject of rescission has nothing to do with this case, for the reason that the appellees never undertook to rescind. They could not do so, for the reason that the first duty of the buyer on rescinding is to return the article, which would have been in this case impossible. Another rule where rescission is attempted, and which is well recognized, is that the whole of the article must be returned. The buyer cannot select such part from the bulk as he may desire and return the remainder; the rescission must be of the entire contract or not at all. Lyon v. Bertram, 20 How. (U.S.), 149; Morse v. Brackett, 98 Mass. 205; Carpenter v. Minturn, 65 (Barb.) N.Y. 415; Cream City Glass Co. v. Friedlander, 84 Wis. 53.

Under the facts as detailed in the evidence in this case, it would have been impossible for the appellees to have had a rescission, because they could not have complied with the law which required them to put the parties in statu quo.

It is said that the...