J. B. Colt Co. v. Mazingo

• Citation: 106 So. 533,141 Miss. 402
• Decision Date: 04 January 1926
• Docket Number: 25328
• Court: United States State Supreme Court of Mississippi
• Parties: J. B. COLT CO. v. MAZINGO. [*]

106 So. 533

141 Miss. 402

J. B. COLT CO. v. MAZINGO. ^[*]

No. 25328

Supreme Court of Mississippi

January 4, 1926

Division A

(Division A.).

1. SALES. On discovery that goods do not comply with warranty buyer may rescind and offer to return, or, when sued, set off difference between price and value of goods; offer to return goods for breach of warranty must be made within reasonable time after discovery of defects; if offer to return goods for breach of warranty is declined, they must not be appropriated by buyer to his own use.

Where goods are sold with a warranty of their character or quality the purchaser, after accepting the goods, on discovering that they are not of the character or quality warranted, may rescind the contract by returning or offering to return the goods to the seller, or he may keep the goods, and, when sued for the price thereof, may set off against such price the difference between it and the actual value of the goods delivered. The offer to return the goods in order to constitute a rescission of the contract must be made within a reasonable time after the discovery by the purchaser of the defects therein, and, if such offer is declined by the seller, the goods must not thereafter be appropriated by the purchaser to his own use.

2 SALES. Buyer of machinery, using it after knowledge of defects, can set off only amount necessary to bring machinery, up to warranty.

Where a purchaser of machinery which falls below, but which can be brought up to, a warranty thereof by the seller uses the machinery after knowledge of its defects, he can, when sued for the price of the machinery, set off against such price only the amount necessary to be expended in bringing tee machinery up to the warranty.

HON. C. C. MILLER, Judge.

APPEAL from circuit court of Wayne county, HON. C. C. MILLER, Judge.

Action by the J. B. Colt Company against W. A. Mazingo. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. B. Saxon, for appellant.

The case of J. B. Colt Company v. Odom (1924), 101 So. 853, should govern here. The court below erred in granting the instruction as follows: "The court instructs the jury for the defendant that if you believe from the preponderance of the testimony that the light plant in question failed to measure up with the contract in this case, or that it was not automatic in action, then you should find for the defendant." The court below further erred in refusing to grant the peremptory instruction asked for by appellant. In the case just cited the court held that where the property is not entirely worthless and where it has been warranted as to the quality and workmanship, it is the duty of the purchaser to return or offer the return of such property for a breach of warranty within a reasonable time after the same is discovered. If he retains the property after such notices and without such offer, he can defend only as the difference between the value of the article as warranted and the purchase price paid therefor.

Appellee states that he wrote appellant to take the plant back, but he does not say when he made such requests. So there is nothing before the court to determine whether or not the offer was made at a reasonable time. Appellee executed the note April 8, 1920, and it came up for hearing January, 1925, five years after the plant was installed.

A. G. Busby, for appellee.

The case of J. B. Colt Company v. Odom, 101 So. 853, should win this case for appellee. This case held, "Where the property is not entirely worthless, and where it has been warranted as to quality and workmanship it is the duty of the purchaser to return or offer to return such property after such notice, and without such offer, he can defend only as to the difference between the value of the article as warranted and the purchase price paid therefor." In the case at bar the appellee testified that the said plant was worthless and that he also offered to return said plant. These two facts would clearly entitle this case to be affirmed. See also in this connection Dulaney et al. v. Jones & Rogers, 57 So. 225, where the supreme court held; "Where the goods purchased were worthless and valueless, the buyer need not return or offer to return them, to escape liability for the price." In the case at bar the testimony shows clearly and undisputedly that the light plant in question was worthless. Therefore, this case should be affirmed. See, also, Ash v. International Harvester Company of America, 58 So. 529.

J. B. Saxon, in reply, for appellant.

The Ash case cited by appellee, 58 So. 529, and the Dulaney case, 57 So. 225, have no application in the case at bar. So with all due respect to the appellee, I submit to the court that if appellant has mistreated or defrauded or has attempted to mistreat or defraud or wrong appellee in any way, the record failed to disclose that fact; and if appellee is entitled to any relief whatever the records in the case failed to disclose that fact.

OPINION

SMITH, C. J.

The appellant sued the appellee on a promissory note, and from a judgment in the appellee's favor has brought the case to this court. The evidence on which the case was submitted to the jury is, in substance, as follows:

The appellee purchased from the appellant a lighting plant, and executed to it therefor the promissory note sued on. The contract of sale was in writing, and one of its provisions is --"that in accepting this order the company warrants the apparatus furnished to be thoroughly durable, galvanized steel acetylene generator,...