Hambrick v. Wilkins

• Decision Date: 07 November 1887
• Citation: 3 So. 67,65 Miss. 18
• Court: Mississippi Supreme Court
• Parties: M. C. HAMBRICK v. T. J. WILKINS

3 So. 67

65 Miss. 18

M. C. HAMBRICK v. T. J. WILKINS

Supreme Court of Mississippi

November 7, 1887

APPEAL from the Circuit Court of Noxubee County, HON. W. M. ROGERS Judge.

The case is stated in the opinion of the court.

Judgment reversed and new trial awarded.

Rives &amp Rives, for the appellant.

1. If there was fraud, it was well known to plaintiff before he performed the contract. He paid the purchase money after he knew all the facts.

Under such circumstances he cannot be heard afterward to complain. He has by an unequivocal act waived the fraud and affirmed the contract. Benjamin on Sales, §§ 452, 703, 704; Story on Contracts, § 497; Edwards v. Roberts, 7 S & M. 549-56; Bass v. Nelms, 56 Miss. 502; The Matteawan Company v. Bentley, 13 Barbour, 641.

2. The attachment affidavit, bond, and writ, proceeds upon the idea that by reason of fraud on the part of defendant, the plaintiff treats the contract as a nullity and sues in assumpsit for the value of what defendant had received from him.

The declaration proceeds upon the idea of an ordinary breach of warranty, and claims damages therefor. Therefore the demurrer to the declaration should have been sustained, on the ground of variance from the cause set up in the attachment.

3. Plaintiff by selling the jack put it beyond the power of defendant to obtain his jack. Certainly plaintiff was not entitled to what he had parted with on a void contract, when he had placed it beyond the power of Hambrick to recover what he had parted with on the same contract. McCulloch v. Scott, 56 Amer. Dec. 561.

4. If plaintiff trifled away his jack and obtained nothing for him, it still remains true, that if he was out only $ 300 in property, and obtained property worth $ 100, he was only damaged to the amount of $ 200, or by the breach of warranty, and that was all he was entitled to recover even under this, the most favorable view of the case for him.

By selling the jack he abandoned the idea of rescission, if he had ever entertained it. McCulloch v. Scott, supra.

Then, if by reason of fraud, or breach of contract, Hambrick was liable to Wilkins for damages, he was liable only for the difference between $ 300, the amount Wilkins paid out, and $ 100, the actual value of the jack. 2 Wait's Action and Defences, p. 460, citing Converse v. Burrows, 2 Minn. 229; Likes v. Baer, 8 Iowa 368; Horn v. Batchelder, 41 N.H. 86.

Bogle & Bogle, for the appellee.

1. The declaration is a literal copy of the precedents as found in Chitty. See 2 Chitty's Pl. Mor. p. 139, 3d Am. ed. from 2d London ed. As to the supposed variance, counsel for the appellant seem to think that an attachment cannot be sustained in assumpsit for fraudulent contraction of a debt. If their position was correct, a suit upon open account could not be commenced by attachment based on that ground. This is an action of assumpsit for breach of warranty, and the suit was commenced by attachment, the affidavit alleging that the debt was fraudulently contracted. The fraudulent contraction of the debt does not change the character of the debt, and there is no sort of variance between the writ and the declaration. We think this assignment totally without merit.

2. If there was a breach of the warranty, the plaintiff was entitled to recover the difference between the actual value of the animal and what it would have been worth if the qualities had been such as they were warranted to be. Wright v. Davenport, 44 Tex. 164; Howie v. Rea, 70 No. Car. 559; Page v. Parker, 40 N.H. 47; Reggio v. Braggiotti, 7 Cush. 166; Perley v. Balch, 23 Pick. 283; Dill v. O'Ferrell, 45 Ind. 268; Westmoreland v. Walker, 25 Miss. 76; Ferguson v. Oliver, 8 S. & M. 332; Passinger v. Thorburn, 90 Am. Decs. 753 (n).

The fact that plaintiff retained the animal after its defects had become known to him does not bar the action on the warranty. See authorities supra. Douglass Mfg. Co. v. Gardner, 10 Cush. 88; Mandel v. Buttles, 21 Minn. 391; Benj. on Sales, 3d, ed., secs. 977 and 1356 (n).

The retention of the property after discovering its defects renders the vendee liable for the actual value of the property, which could be deducted, in suit on the warranty, from the amount of damages the vendee is entitled to; that is, the value of the animal if it had been as represented to be.

3. The facts here do not show such a user of the animal by plaintiff as is inconsistent with the rescission of the contract. The animal was worthless to him, and expensive to keep, and he was not required to incur any further expense about the animal, as defendant might become insolvent, and the warranty prove worthless. The testimony shows that plaintiff simply declined to become responsible for the feed of a worthless animal, and relinquished any claim he might have in consideration of being released from any claim against him for the feed.

In Parsons on Con., 1st Vol., star page, 593, 7th ed., it is said: "And if the vendor refuses to receive the goods back, when tendered, the purchaser may sell them; and if he sells them for what they are really worth, and within a reasonable time, he may recover of the vendor the loss upon the re-sale, with the expense of keeping the goods and of selling them." And the author cites, in support of that doctrine, Woodward v. Thacher, 21 Vt. 580; Buffington v. Quantin, 17 Penn. St. 310; Chesterman v. Lamb, 2 A. & E. 129; McKenzie v. Hancock, Ry. & M. 436, and MacLean v. Dunn, 4 Bing. 722.

We do not think there is anything in Carver Gin Co. v. Gaddy, 62 Miss. 201, in conflict with these cases.

OPINION

COOPER, C. J.

This is an action by attachment brought by the appellee against the appellant to recover damages for the breach of a warranty in the sale of a jack.

The ground of attachment alleged is, that the defendant "fraudulently incurred the obligation for which suit is brought." At the return term the defendant traversed the ground of attachment, and on this issue a verdict was found in favor of the plaintiff.

On the trial of this issue, evidence was introduced tending to show that the plaintiff, after having notice of the falsity of the warranty, and after he had for some time held possession of the jack, paid to the defendant the purchase price. On the other hand, the plaintiff introduced evidence tending to show that while he had been in possession of the jack, (during which time he refused to serve mares, by reason of which the...