Rouse Drug Store v. Columbia Scale Co.
| Decision Date | 20 February 1933 |
| Docket Number | 30441 |
| Citation | 164 Miss. 640,146 So. 297 |
| Court | Mississippi Supreme Court |
| Parties | ROUSE DRUG STORE v. COLUMBIA SCALE CO |
1 SALES.
Unless otherwise provided, buyer, when article is defective or unsuitable, may rescind, returning article within reasonable time, or, when sued, set off difference between price and actual value.
2 SALES.
Buyer not returning defective scale within agreed time held liable for price.
3 SALES.
Seller not replying to buyer's letter requesting shipping directions did not waive contract making buyer liable for price unless returning property by freight within thirty days.
APPEAL from circuit court of Jeff Davis county HON. J. Q. LANGSTON, Judge.
Suit by the Columbia Scale Company against the Rouse Drug Store. From a judgment on a directed verdict for plaintiff, defendant appeals. Affirmed.
Affirmed.
W. J. Lee, of Prentiss, for appellant.
The court below erred in granting the peremptory instruction for the plaintiff.
The appellee makes no defense to the question of a defective scale and we submit that it overwhelmingly shows that the scales shipped to appellant was of no value for any purpose and it is further undisputed that appellant gave written notice of the defective condition of said scale within the thirty days and requested shipping directions. It is a well settled law in our state that goods or machinery or other personal property sold for a specific purpose are always subject to a defense of breach of warranty and we most earnestly submit that appellant in notifying appellee within the thirty days period of the contract sued on setting out the worthless condition of the scale availed himself of every right under our law.
Tropical Paint Co. v. Mangum and Hatchel, 125 So., page 248.
Appellee makes no effort to prove the fitness of the machine for the particular purpose for which it was sold but relies wholly on that provision of the sale contract that provides that the failure to return the machine, the purchase price of which is the basis of this suit.
We submit that the defense of a fraud or breach of warranty is ever open to litigants in this state.
Nash Miss. Valley Motor Co. v. Childress, 125 So., page 708; Fay & Egan v. Cohn & Brothers, 158 Miss. Rep. 733.
Livingston & Milloy, of Prentiss, for appellee.
There was no error committed by the trial court below in granting appellee a peremptory instruction. There was no issue to be submitted to the jury under the evidence in this cause.
Where buyer purchased penny weighing scales under contract that he would return them within thirty days if he did not desire to keep them, in seller's suit for price, that return of scales was a condition precedent to permit defense that scales were worthless.
Columbia Weighing Machine Company v. Frank W. Young, 4 S.W. (2d Series) 828.
The return of the property within the time specified, or payment of the stipulated purchase price, is a condition precedent which, the buyer must have performed before he could claim a breach of warranty express or implied.
It has been repeatedly ruled that similar contractual obligations are conditions precedent to be observed and performed by the buyer, and he must show a compliance therewith on his part, or a waiver thereof by the seller, before he can recover damages from the seller, or hold the seller upon a warranty, express or implied, as to the quality or fitness of the goods delivered by seller.
Yerxa, Andrews & Thurston v. Macaroni Co., 315 Mo. 927, 288 S.W. 20, 36, 37.
Appellant had thirty full days to return the scales for any reason at all, and his failure to return the scales according to the written contract prevents him from making any defense sought to be made in the court below.
A sale or return is in the nature of a sale with an option to return if unsatisfactory, or a sale upon condition subsequent, and differs from a sale on trial or approval.
Where the buyer is given the privilege of returning the property sold and thus avoiding liability for the price or demanding a repayment of the price if paid, he must comply with the express or implied condition attached to the return privilege; otherwise the sale becomes absolute.
The appellee sued the appellant, Rouse, doing business under the name of Rouse Drug Store, and recovered a judgment against him for the contract price of a Columbia Weighing Scale. The appellant's defense to the suit is that the scale was defective, in that it would not correctly register weight. He discovered this defect immediately after receiving the scale, but retained, and still has, it. At the close of the evidence, the court directed the jury to return a verdict for the appellee, and there was a verdict and judgment accordingly.
The contract of purchase was procured by an agent of the appellee, was accepted by it, and the scale delivered thereunder. The contract reads, in part, as follows:
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