J. B. Colt Co. v. Odom

• Decision Date: 24 November 1924
• Docket Number: 24401
• Citation: 136 Miss. 651,101 So. 853
• Court: Mississippi Supreme Court
• Parties: J. B. COLT CO. v. ODOM. [*]

101 So. 853

136 Miss. 651

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

No. 24401

Supreme Court of Mississippi

November 24, 1924

Division B

1 EVIDENCE. Purchaser's representations that no oral or written statements made by agent precludes avoidance of contract after acceptance for agent's representations.

Where a contract procured by an agent is to be sent to the principal for approval before it becomes a contract, and where the purchaser in the written contract represents that no agent or representative of the company has made any agreements or statements verbal or written, modifying or adding to the terms and conditions therein set forth, and that the order cavers all of the agreements between the purchaser and the company, and cannot be modified, except in writing approved by the officers of the company, and such contract is accepted without notice of verbal representations or agreements, the purchaser cannot thereafter avoid the contract because of oral representations made by the agent procuring the written order.

2 EVIDENCE. Instruction, that if purchaser relied on representations contract void, held erroneous.

In a suit on such contract, it is error to give instructions to the jury that the purchaser has a right to rely upon representations made by the agent as to quality, character etc., of the appliance ordered, and that, if the purchaser relied upon such representation, the contract was void.

3 SALES. Purchaser of warranted property not entirely worthless should return or offer to return within reasonable time after discovery of breach; purchaser retaining property without offer to return for breach of warranty can only defend as to difference between value as warranted and purchase price paid.

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 for a breach of warranty within a reasonable time after the same is discovered. If he retains the 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.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Suit by the J. B. Colt Company against D. M. Odom. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Judgment reversed, and case remanded.

W. S. Welch, for appellant.

Clearly the plaintiff was entitled to the instructions as requested, without this modification. See Lumbermen's Supply Co. v. Poplarville Saw Mill Co., 78 So. 156. An offer to return to be available, if a mere offer to return is ever sufficient, must be an offer to return to the vendor at the place of delivery, which in this case would have been at the place of shipment. See Young v. Arntze, 5 So. 253; Rumsey & Sikemeier Co. v. Jacob, 46 So. 169; Case Threshing Machine Co. v. McCoy, 111 Miss. 715, 72 So. 138. If a mere offer to return is ever sufficient to take the place of an actual returning of the merchandise, then we submit such offer must be made to a party in interest; it must be communicated to the principal. Certainly the appellant was not bound by an offer to a stranger to the transaction. And we urge that the offer that Odom made to return was not seasonably made and was not made to anyone in authority.

In the trial of the case, over the repeated and persistent objection of the appellant, the appellee was permitted to testify as to statements made to him by the agent of the appellant while negotiations were pending for the sale of the plant; that this testimony was incompetent and inadmissible is so well known and the rule denying its admissibility is so universally approved in this court that it would seem unnecessary to cite authority. Bettman-Dunlap Co. v. Gertz Bros., 99 So. 384.

The demurrer of the appellant to two special pleas of the defendant should have been sustained because: (a) The pleas set up conversation and oral representation made by and between the parties during the negotiations leading up to and before the execution of the written contract, and not contained in the written contract, and which constitutes no defense; and, (b) Because the said pleas do not aver or in any way show the extent to which the defendant claimed to have been damaged because of the pretended breach of the warranty contained in the written contract. If accepted as true, the pleas wholly failed to show the extent, if to any extent, the defendant was entitled to recoup, or diminish the plaintiff's recovery.

The identical contract involved in the present case was considered by the supreme court of Alabama recently in two cases. Bozeman v. J. B. Colt Co., 95 So. 588; J. B. Colt Co. v. Channell, 95 So. 209. It is to be borne in mind that the plant was sold by the appellant to the appellee f. o. b. cars at shipping point, and the appellee had the plant installed in his residence. The only offer to return the plant was an offer made by the appellee to a collector, who visited him after the maturity of the note. An offer to return a plant that has been installed is not sufficient. There must be an offer to dismantle and deliver to a carrier at the point of origin. Carver Gin & Machine Co. v. T. W. Gaddis, 62 Miss. 201; Alig v. Lacky, 114 Miss. 392, 75 So. 139; E. O. Evans Piano Co. v. Tulley, 116 Miss. 267, 76 So. 833; Case v. McCoy, 170 Miss. 715, 72 So. 138.

The appellee being under the duty, if he elected to rescind the contract, to return the wares to the plaintiff at the place of shipment, is in the same attitude as if he had never made any offer to return, whatever. Young v. Arntze, supra, 35 Cyc. 147; Rumsey & Sikemeier v. Jacob, supra; Freeman v. Keene, 49 So. 567; Stillwell et al. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513.

The plaintiff requested the following instruction: "For the plaintiff, the court instructs the jury that your verdict must be for the plaintiff but if you believe from the preponderance of the testimony that the plant was not as warranted, then you may allow the defendant credit on the note sued for the difference in the value of the plant as it was and its value if as warranted." Partial failure of consideration is a defense only pro tanto, Jones v. Curtis, 99 So. 438; Stillwell et al. v. Biloxi Canning Co., supra.

All the instructions given by the court to the defendant were objectionable and incorrectly state the law. These instructions authorized the jury, and directed the attention of the jury, to the incompetent evidence with reference to the amount of carbon required for the plant and the price of carbide, and other things that were in direct conflict with the written contract, solemnly entered into.

Currie & Currie, for appellee.

The issues raised by these pleadings on the warranty were: 1. Did the appellant warrant specially and in writing, the character of the material and durability of the apparatus or lighting plant? 2. Was the warranty genuine, true, and made in good faith, or was it false and fraudulent and made in bad faith? 3. If false and fraudulent, was it made for the fraudulent purpose of inducing the appellee to sign the contract and to buy the apparatus?

The following issues were raised as to the representations of the agent, Easterling. 1. Did he falsely and fraudulently represent that there was a contract as averred in the special plea, under which the price of carbide was fixed at five dollars and twenty cents per hundred pounds, that the price would not go up and that one hundred pounds would operate the plant for six months? 2. If he did, did he make such false and fraudulent representations, for the fraudulent purpose of inducing the appellee to buy the plant and sign the contract and note? 3. Was the appellee thereby induced to buy the apparatus and sign the contract and note?

As to the fact of the warranty and the intent with which it was made, the jury found that the warranty was actually made and that it was made with fraudulent intent to induce the appellee, and others dealing with the appellant, to buy the carbide plant. The warranty was a part of the contract of sale and purchase and the appellant was bound to comply literally with the terms of its warranty. Masons' Union Life Ins. Ass'n v. Brockman, 50 N.E. 493, 497, 20 Ind.App. 206; Blumer v. Phoenix Ins. Co., 45 Wis. 622; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 389; McDermott v. Modern Woodmen of America, 71 S.W. 833, 97 Mo.App. 636.

The instructions, as modified by the court correctly stated the law under appellant's theory of the case. The case of Lumbermen's Supply Co. v. Poplarville Sawmill Co., 78 So. 157, cited by appellant demonstrates conclusively that the court correctly modified the instructions, assuming that appellant's theory of the case was correct. Where one sells another goods which are wholly worthless, even though no fraud be perpetrated upon the purchaser, yet the purchaser under such conditions is not required to return or to offer to return the goods; this, as we have said, notwithstanding the transaction may have been most innocently entered into by both parties. Dulany v. Jones & Rogers, 57 So. 225; Ash v. International Harvester Co. of America, 58 So. 529.

We will not take the time of the court to criticise each of the cases cited by appellant in an effort to show that appellee should have returned the lighting plant to appellant, we content ourselves by saying that the court will find upon examination of the cases that in each case the purchaser either kept and used the goods after discovering the defects, as in the case of Lumbermen's Supply Co. v. Poplarville Sawmill Co. supra; or cases in which no warranty was made;...