Johnson v. Whitman Agric. Co.

• Decision Date: 22 December 1885
• Citation: 20 Mo.App. 100
• Parties: PETER JOHNSON ET AL., Respondents, v. WHITMAN AGRICULTURAL COMPANY, Appellant.
• Court: Missouri Court of Appeals

20 Mo.App. 100

PETER JOHNSON ET AL., Respondents,

v.WHITMAN AGRICULTURAL COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 22, 1885.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Reversed and remanded.

DYER, LEE & ELLIS, for the appellant: Where the property in specific chattels sold has passed unconditionally to the buyer, the law gives no right to rescind the contract in the absence of an express stipulation to that effect. Walls v. Gates, 4 Mo. App. 4; Story, Sales, sect. 421; Sedg., Dam. (7 Ed.) 605; Benj., Sales (1 Am. Ed.) sect. 888, and cases cited; 5 Wait, Act. and Def. 610. The court, at the instance of the plaintiffs, gave erroneous instructions to the jury in regard to the law applicable to the case, and particularly in regard to the measure of damages. Walls v. Gates, 4 Mo. App. 1; Sedg. Dam. (7 Ed.) 606; Courtney v. Boswell, 65 Mo. 196; Benj., Sales (1 Am. Ed.) sect. 894.

L. F. OTTOFY, for the respondents: There was a rescission of the contract of sale and the measure of damages is the purchase money or amount paid. Branson v. Turner, 77 Mo. 494; Walls v. Gates, 4 Mo. App. 4; Benj., Sales (2 Am. Ed.) sect. 895; 1 Id. (4 Am. Ed.) sects. 623, 635, and cases cited; 5 Wait, Act. and Def., 629, and cases cited. There was no unconditional sale, and even though there had been it was subject to rescission within a reasonable time. Branson v. Turner, 77 Mo. 494.

THOMPSON, J., delivered the opinion of the court.

The petition contains two counts. The first states in substance that the plaintiffs purchased of the defendant, on the twenty-first of December, 1883, a hay press on the faith of a written warranty given by the defendant; that the plaintiffs paid to the defendant one hundred and eighty dollars on account of the purchase price of it; that it did not comply with the warranty; that the plaintiffs for this reason tendered it back to the defendant on the eighth day of March, 1884, wherefore the plaintiffs ask judgment for the sum of one hundred and eighty dollars so paid, with interest and costs. The second count need not be considered, because, under the rulings of the court, the defendant took a non-suit as to that. The evidence tended to show that the defendant sold the machine outright to one French, who was a dealer in agricultural implements; that French sold the machine to the plaintiffs, and that in order to enable French to effect the sale, the defendant's agent executed in a letter to the plaintiffs the usual written warranty which the defendant was in the habit of giving to any one who should become the purchaser of one of these machines of its make. The court put the case to the jury on the theory that although the plaintiffs had bought the machine of French, to whom the defendant had sold it outright, yet, if the defendant, in order to induce them to purchase it, gave the written guaranty in question, and the machine did not comply with the guaranty, the plaintiffs were at liberty to tender the machine to the defendant at any time before the institution of the suit, and recover of the defendant what they had paid to French on account of the purchase money. This was an erroneous view of the law applicable to the case.

Notwithstanding the contrary intimation of Judge Bakewell in Walls v. Gates (4 Mo. App. 1, 6), we understand the decision of the supreme court in Branson v. Turner (77 Mo. 489), to be an authority binding upon us for the rule that where there is a breach of warranty, the vendee may return the property and rescind the contract within a reasonable time. If he can do this, he can manifestly, upon such a tender, recover back the money which he has paid on account of the contract, which is tantamount to saying that the rule in Massachusetts, Maine, Maryland, and, perhaps, other states is the rule in this state. But according to the statement of this rule by the supreme court in Branson v. Turner, he must make the tender within a reasonable time. Here, the court charged the jury that he could do it at any time before the bringing of the suit, and the suit was not brought until three months after the sale,...