Viking Refrigerators, Inc. v. Farrell

• Citation: 176 So. 910,180 Miss. 181
• Decision Date: 22 November 1937
• Docket Number: 32898
• Court: United States State Supreme Court of Mississippi
• Parties: VIKING REFRIGERATORS, INC., v. FARRELL

176 So. 910

180 Miss. 181

VIKING REFRIGERATORS, INC., v. FARRELL

No. 32898

Supreme Court of Mississippi

November 22, 1937

Division A

Suggestion Of Error Overruled January 3, 1938.

APPEAL from circuit court of Harrison county HON. W. A. WHITE Judge.

Suit by Viking Refrigerators, Inc., against O. P. Farrell. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Lemuel H. Doty and Albert Sidney Johnston, Jr., both of Biloxi, for appellant.

It is well settled, we submit, that if, after knowledge of the breach of warranty as to quality, the buyer continues to use and consume the goods received by him, he waives his right to rescind and return said goods or the amount unconsumed.

Lyon v. Bertram, 20 How. 149, 15 L. Ed., 847; Noble v. Olympia Brewing Co., 64 Wash. 461, 117 P. 241, 36 L. R. A. (N. S.) 467; Cream City Glass Co. v. Friedlander, 84 Wisc. 53, 21 L. R. A. 135; Fox v. Wilkinson, 133 Wisc. 337, 113 N.W. 669, 15 L. R. A. (N. S.) 1107.

It is no excuse for the continued use and consumption that it is required by the exigencies of the buyer's business, and it is also immaterial that the buyer, while continuing to, use and consume the property, made objections to the, quality; and the fact; that the further use or consumption of the goods, after knowledge of defects in quality, was for the purpose of establishing evidence of their defective quality will not prevent such use from constituting a waiver of the right to return.

Cream City Glass Co. v. Friedlander, 21 L. R. A. 135, Stillwell Bierce & Smith Vaile Co. v. Biloxi Canning Co., 29 So. 513.

The case of Stillwell Bierce, etc., v. Biloxi Canning Co., decided by this court, through Justice Terral as the organ of the court, is practically on all fours with the case at bar. Here the appellee used the display case, made payment on it and wrote that he was satisfied. His receipt of the display case from the carrier and subsequent use thereof, constituted an acceptance. When he wrote appellant he was not satisfied on several occasions, as he testified before the jury, he continued to use the display case. His actions were inconsistent with his letters. His testimony was not supported or substantiated by what he did while using the display case.

Lumberman's Supply Co. v. Poplarville Sawmill Co., 117 Miss. 274, 78 So. 157.

Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument.

Bullar v. Brewer, 118 Ga. 918, 45 S.E. 711.

Where the written sale contains no warranty, or expresses the warranty that is given by the vendor, parol evidence is inadmissible to prove the existence of a warranty in the former case, or to extend it in the latter by inference or implication. So where it appears that the agreement has been integrated in the writing, the terms of the writing cannot be changed or contradicted by parol evidence.

Benjamin on Sales (7 Ed.), sec. 621; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 58 N.W. 232; Hoover & Co. v. Humphrey, 107 Miss. 810, 66 So. 214; Noble v. Olympia Brewing Co., 64 Wash. 461, 117 P. 241, 36 L. R. A. (N. S.) 468.

If the seller of personal property delivers to the purchaser an article that does not comply with the warranty, express or implied, the latter may rescind by an offer to return the article within a reasonable time after discovery of the defects, but he must act with promptness. On discovering that the property is not such as was contemplated, he must offer to return it. If he neglects to do so immediately upon discovering the breach of warranty and keeps it, treating it as his own, he cannot afterwards rescind.

Barnett v. Stanton, 2 Ala. 181; Hodge v. Tufts, 115 Ala. 366, 22 So. 422; Comer v. Franklin, 169 Ala. 573, 53 So. 797; Detroit Heating & Lighting Co. v. Stevens, 16 Utah 177, 52 P. 379.

If, after ascertaining defects entitling him to rescind, the purchaser exercises dominion over and avails himself of benefits from the purchased property to which he could only be entitled as owner, it is a waiver.

Fox v. Wilkinson, 133 Wis. 337, 14 L. R. A. (N. S.), 1107; Sturgis v. Whisler, 145 Mo.App. 148, 130 S.W. 111; Mizell v. Watson, 57 Fla. 111, 49 So. 149; Hodge v. Tufts, 115 Ala. 366, 22 So. 422; Gammon v. Abrams, 53 Wis. 323, 10 N.W. 479 Chambers v. Lancaster, 160 N.Y. 342, 54 N.E. 707; J. I. Case Thrashing Mach. Co. v. Patterson, 137 Ky. 180, 125 S.W. 287; Stillwell, B. & S. V. Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513.

At the conclusion of the testimony, appellant requested a peremptory instruction, which was refused. We submit said instruction should have been given. There was no testimony to support appellee. He failed to submit an issue to the jury as to set-off and recoupment, or either, and we submit his right so to do was waived. Again, he denied the indebtedness sued for by appellant, and set-off admits an indebtedness, because it only applied to cases of mutual indebtedness. The verdict of the jury is contrary to the law and the evidence.

Geo. R. Smith and White & Morse, all of Gulfport, for appellee.

The contract provides: "The use of the property described herein, or any portion thereof, for a period of five days, constitutes an acceptance of the same, as complying with all the terms and specifications of this contract and all claims for damages, errors or shortage not filed within that time are hereby waived."

The trouble about that is the defect did not appear in that time. It was not a claim for damages or shortage, to be filed, but it was a total failure to function. Furthermore, Harris agreed to give a new one if it could not be made to work. No court would enforce such an unreasonable provision, especially to relieve against a breach of warranty.

The written contract is nowhere varied in any of its terms. A new contract was made to give Farrell a new box. No attempt is made to vary the written contract.

Brown v. Murphree, 31 Miss. 91.

There was no objection to the testimony that Harris asked Farrell to continue experiments, promised to remedy, and if not successful to give him a new box. The case is therefore on all fours with the sale of Fay v. Cohn, 158 Miss. 733. This case lays down the rule: 1. That where there has been a breach of implied warranty, and seller notified purchaser it would not accept return of articles, no tender back was necessary, it being a vain thing. 2. That under such conditions notes given are subject to a defense of want of consideration. 3. That where promises are made by seller that defects can be remedied and purchaser keeps article to allow such attempts, there is no acceptance. In this case the evidence of debt is the note; they are relied on for recovery. Our defense simply is we do not owe them because the consideration has failed.

German American Provision Co. v. Jones, 87 Miss. 277; Carver Gin Co. v. Gaddy, 62 Miss. 201; Sharp v. Brook haven Brick Co., 120 Miss. 850; Bowers v. Southern Automatic Music Co., 114 Miss. 25.

We respectfully submit the case was properly submitted to the jury by the county court, and that their verdict is in accordance with the law and evidence, that the case was properly affirmed by the circuit court and should be here affirmed.

OPINION

McGowen, J.

Appellant, Viking Refrigerators, Inc., brought suit in the county court against the appellee, Farrell, to recover the sum of $ 458.22, with interest and attorney fees, and to enforce a purchase-money lien upon a Tempter Viking porcelain display case, with accessories. The appellee pleaded the general issue and a special plea of failure of consideration. The alleged debt was evidenced by a note. The evidence was heard, the cause was submitted to the jury, and a verdict for the appellee was rendered. The Viking Refrigerators, Inc., appealed to the circuit court where the judgment of the county court was affirmed, and it prosecutes an appeal therefrom to this court.

The essential facts are these: On May 23, 1934, appellant sold to appellee the above-described refrigerator display case, the sale was made by written order, executed by the appellee, and accepted by the appellant. The purchase price was $ 883.70. M. T. Harris made the sale from a catalogue. The contract contained the following stipulations:

"This contract states the entire agreement for the purchase of said property. . . . It is agreed that the title to the articles covered by this contract no matter whether, or by what manner or degree it may be attached to the realty, shall not pass to the purchases until the entire purchase price thereof and any note or notes, including renewals, given therefor and all judgments for the whole or any part thereof is paid, and such property shall not be removed from the building in which it is first installed, without the consent of the Viking Refrigerators, Inc. . ....