Sturgis v. Whisler
| Decision Date | 28 June 1910 |
| Citation | 130 S.W. 111,145 Mo.App. 148 |
| Parties | FRED H. STURGIS et al., Respondents, v. GEORGE C. WHISLER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Caldwell Circuit Court.--Hon. Francis H. Trimble, Judge.
Judgment reversed.
Chapman & Hanger for appellant.
(1) Contracts, involving the relation of personal confidence, and such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided, are not transferable. Pritts v McMurray, 74 Mo.App. 495; Implement Co. v. Iron Works, 129 Mo. 222; Kernochan v. Murray, 111 N.Y. 306.
(2) Where an executory contract is founded upon trust and confidence reposed in the character and skill of a particular person, it is not assignable without the consent and concurrence of both parties. Lansden v. McCarthy, 45 Mo. 106; Boykin v. Campbell, 9 Mo.App. 495; Redheffer v. Leather, 15 Mo.App. 12; Ice Co. v Patter, 123 Mass. 28. (3) The contract sued on was not assignable without the assent of both parties thereto, for the reason that it was one of mutual confidence. Moore v Thompson, 93 Mo.App. 336. (4) The rule is that a party, desiring to rescind a contract, must return or tender back the property received and place the other contracting party in statu quo, otherwise the contract will not be rescinded. There was no offer to return or rescind prior to suit in this case. In plaintiff Thompson's testimony he said: "When I had my conversation with Mr. Whisler up at Hamilton I did not offer to turn the horse back." This was the only conversation he had with the defendant prior to the suit. Phares v. Lumber Co., 18 Mo.App. 546; Girard v. Car. Co., 123 Mo. 387; Zuck v. Carriage Co., 106 Mo.App. 566; Donovan v. McDermatt, 108 Mo.App. 538; Jarrett v. Morton, 44 Mo. 275. (5) A right to rescind must be exercised at the earliest practicable moment after the discovery of the ground therefor. Pence v. Langson, 99 U.S. 578; Estes v. Reynolds, 75 Mo. 563; Hall v. Fulleston, 69 Ill. 448; St. John v. Hendrickson, 81 Ind. 350; Foster v. Rowley, 110 Mich. 63. (6) Vendee must not only tender a return of the property, but the tender must be a continuing one, and he must stand ready to comply with it at any time; if he afterwards loses the property his conduct in so doing amounts to an acceptance which will bar his right to a rescission. Remedies for Breach of Warranty, 30 Am. Eng. Cyc. (2 Ed.), p. 195; McCullough v. Scott, 13 B. Mon. 172; Bigelow on Frauds, p. 425; Kerr v. Emerson, 64 Mo.App. 160. (7) Suit can be maintained on a warranty only by the party to whom warranty is made. Talley v. Beever, 78 S.W. 23; Tyler v. Moody (Ky.), 54 L. R. A. 417; Zuckerman v. Solomon, 73 Ill. 131. (8) A delay of six weeks after the discovery of the breach of warranty is unreasonable and amounts to an acceptance of the goods. Rosenfield v. Swenson (Minn.), 47 N.W. 718. (9) Where a breach of warranty occurs in the sale of a chattel and the purchase money has been paid, vendee may retain the property and sue for the breach, or he may, on returning the property promptly after notice of the breach, rescind the contract and sue for the breach. Heating Co. v. Seigel, 60 Mo.App. 148; Branson v. Tuner, 77 Mo. 489. (10) It seems no one can be made a party to an action to rescind either as plaintiff or defendant except the buyer and the seller and where the property has been sold the remedy of the second purchaser, if any, is against his immediate seller and not against the original seller. 28 Am. and Eng. Cyc. Law (1 Ed.), p. 817-24. (11) Thompson got no interest in any cause of action on the contract of warranty accruing to Sturgis because no cause of action existed in Sturgis' favor at the time he made the assignment, as he had no power to put the defendant in statu quo and never could. No breach of warranty action for rescission of contract could be assigned. He could have no such cause of action, hence he could not and did not assign any. Mullinox v. Lowry, 124 S.W. 572; Harrison v. Craven, 188 Mo. 590.
Crosby Johnson, C. C. Johnson and Wm. M. Fitch for respondents.
(1) The contract not being for the personal services of Sturgis, he had a right to assign the contract without the knowledge or consent of defendant. Leahy v. Dugdale, 27 Mo. 437; State ex rel. v. Clements, 42 Mo. 69; Love v. Van Every, 18 Mo.App. 196; Sunday Mirror Co. v. Galvin, 55 Mo.App. 412; Paving Co. v. Prather's Admr., 58 Mo.App. 487; Delvin v. Mayor, 63 N.Y. 8; Munsel v. Lewis, 2 Den. (N. Y.) 224; Gaston v. Plummer, 14 Conn. 343; Galey v. Melon, 172 Pa. St. 443; Seers v. Conover, 33 How. Prac. 324; Snyder v. Railroad, 86 Mo. 613. (2) Defendant consented to the sale of the stallion and to the transfer of the warranty thereon, and he cannot complain of its being transferred now. Afflick v. Streeter, 125 Mo.App. 703; Hall v. Chitwood, 106 Mo.App. 568. (3) If an action will survive to the executors or administrators of a man, the action is assignable. Bank v. Com. Co., 61 Mo.App. 144; Alexander v. Railroad, 54 Mo.App. 66; Chiles v. Railroad, 117 N.W. 414; Life Ins. Co. v. Smith, 117 Mo. 261; Pomeroy's Remedies, secs. 146, 147 and 150; Chouteau v. Broughton, 100 Mo. 406. (4) Defendant having refused to arbitrate and also having refused to have anything to do with the horse or to receive the horse, makes actual tender of the horse unnecessary. Where one announces in advance that he will not accept, a tender is unnecessary. Harwood v Diemer, 41 Mo.App. 48; Austin v. St. Louis Transit Co., 115 Mo.App. 146; 28 Am. and Eng. Ency. Law (2 Ed.), p. 7; Walls v. Gates, 4 Mo.App. 1; Schilbason v. Pendleton, 76 Mo.App. 454; McDonald v. Wolf, 40 Mo.App. 302; Stephenson v. Kilpatrick, 166 Mo. 262; Johnson v. Garlichs, 63 Mo.App. 578. (5) The contract provides that the horse may be returned March 1, 1908. There was a reason for this; by the nature of things, it took time to test the ability of the horse to get foals. The contract was a law unto the parties. Skeen v. Thresher Co., 34 Mo.App. 485; Beatie v. Coal Co., 56 Mo.App. 221. (6) The contract of sale in this case contained a warranty, with privilege of return if the horse did not comply with the warranty. The case was properly brought to compel defendant to receive the horse. Bomberger v. Hennessy, 18 Ia. 477; Bayliss v. Hennessy, 54 Ia. 11. Damages caused by a breach of warranty are assignable. Felt v. Reynolds Fruit Co., 52 Mich. 602, 18 N.W. 378. (7) Mere delay in seeking to enforce the right to rescind may be so explained as to show that it was not an acquiescence. 24 Am. and Eng. Law (2 Ed.), 626; 29 Am. and Eng. Ency. Law (2 Ed.), 1105. (8) Offer to restore property is sufficient if contained in the petition. 24 Am. and Eng. Ency. Law (2 Ed.) 621; Whelen v. Reiley, 61 Mo. 565; Paquin v. Milliken, 163 Mo. 79. (9) Fair and reasonable or substantial compliance with conditions precedent is all that is required. Osborn Co. v. Henry, 70 Mo.App. 23; Berry v. Mowing and Reaping Co., 62 Mo.App. 41; Nichols v. Shepard, 79 Mo. 264; Kingman Co. v. Schulenberger, 64 Mo.App. 554; Nichols, Shepard Co. v. Rhoadman, 112 Mo.App. 308; Harvester Co. v. Mackey, 100 Mo.App. 405; 30 Am. and Eng. Ency. Law (2 Ed.), 206.
--Plaintiffs alleged an attempt to rescind a written contract of sale of a stallion by offering to return the horse, and demanding the purchase price, stating that such offer and demand were refused. They thereupon brought this action for the purchase price, the petition containing an offer to return.
It appears that defendant sold the stallion for breeding purposes at a public auction to plaintiff Sturgis, and that certain representations of warranty were made by the auctioneer which afterwards, when the purchase price was paid, were reduced to writing, to the effect following: That the horse would get sixty per cent of mares with foal with proper care, treatment and certain exercise; and that if he failed to fulfill the warranty defendant would take him back and return purchase money.
It is claimed that the stallion failed to meet the requirements of the contract and that he was a great part of the time unable to copulate with mares and that when he did, he failed in getting more than twenty per cent of them with foal, being forty per cent less than was agreed upon in the contract.
A few days after the sale and written contract, Sturgis sold the stallion to his co-plaintiff, Thompson, and about ten months afterwards assigned to him one-half interest in the contract with defendant.
There were several questions presented at the argument; among them, whether the contract was personal with Sturgis and non-assignable by him; and whether a joint cause of action could result to Sturgis and Thompson.
But we think the evidence conclusively fails to establish a proposition which, in this State, is the foundation of the right of rescission. That is, a tender of the property back to the seller, promptly on discovering the defect which is relied upon for rescission. [Robinson v. Siple, 129 Mo. 208, 31 S.W. 788; Taylor v. Short, 107 Mo. 384, 17 S.W. 970; Estes v. Reynolds, 75 Mo. 563; Kirk & Co. v. Seeley, 63 Mo.App. 262; Walls v. Gates, 6 Mo.App. 242.]
The evidence not only fails to show a tender of the stallion to defendant by plaintiffs, or either of them, but it affirmatively shows that no tender was made. It does appear that in October, after the sale, in a conversation between plaintiff Sturgis and defendant, he told defendant that plaintiff Thompson wanted him to take the horse back. Within a day or two they met again and Sturgis again said that Thompson was dissatisfied and wanted to turn the horse back. Defendant insisted that the horse was "all right" that he had no connection with Thompson, and that he, Sturgis, had...
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