Walls v. Gates

• Decision Date: 26 November 1878
• Citation: 6 Mo.App. 242
• Parties: GASTON B. WALLS, Respondent, v. WILLIAM J. GATES, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 242

GASTON B. WALLS, Respondent,

v.WILLIAM J. GATES, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 26, 1878.

1. In case of a purchase with express warranty, where there is no question of fraud, the vendee cannot insist upon returning the goods. There can, in such a case, be no rescission except by consent of parties, unless it was expressly agreed that the contract should be rescinded if there was a breach of the warranty.

2. Where there is such an agreement of rescission, there can be no action for the purchase-money until the property is first returned to the vendor in the same condition substantially as when sold, or until an unconditional tender thereof has been made.

3. In such a case, a tender, to have the effect of a return of the goods, must be such as that the other party has nothing to do but to signify acceptance to make the property in the chattel vest in him.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

HUDGENS & DAVIS, for appellant, cited: Walls v. Gates, 4 Mo. App. 1; Bunce v. Beck, 43 Mo. 279; Benj. on Sales, sect. 621, and note m;61 Mo. 133.

MARSHALL & BARCLAY, for respondent, cited: Smith v. Steinkamper, 16 Mo. 150; Story on Sales, sect. 15 b, and notes 1 and 6.

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

This action was commenced before a justice of the peace. The allegations of the written cause of action filed with the justice are, that defendant sold to plaintiff a horse for $140, which sum plaintiff paid; that defendant warranted the horse sound and kind; that there was a breach of this warranty, in that the horse was not sound and would not pull; that plaintiff offered to return the horse to defendant upon repayment of the purchase-money, but that defendant refused, and still refuses, to receive back the horse and repay the purchase-money. Plaintiff asks judgment for the purchase-money paid. There is another count for money paid out for the keep of the horse. There was a verdict and judgment for plaintiff in the Circuit Court, and defendant appeals.

When this case was here before, it was remanded for new trial because of error in the instructions and because there was no evidence to support the verdict.

The statement of the cause of action seems to be intended for an action for damages for breach of warranty, though the measure of damages asked is inconsistent with that theory. But, against the objection of defendant, the case was tried upon the theory that this is an action upon an agreement between plaintiff and defendant that the horse should be returned and the money repaid if the horse did not come up to the representations made at the time of the sale. As we have already said in a former opinion in this case, it is held in Massachusetts and Maryland that the purchaser has a legal right to rescind the contract and return the goods in all cases of a breach of warranty, express or implied. The established doctrine in England is, that where the property in the goods has passed unconditionally, the law gives the purchaser no right to rescind in the absence of an express stipulation to that effect. This doctrine seems more consistent, and is accepted in New York, Pennsylvania, and probably is, in the majority of the States, the received doctrine. It is claimed by respondent here that there was such an express agreement in this case, and that this action is brought upon it. If that be so, it is clear that there can be no action for the purchase-money until the parties are placed, in regard to the property sold, in the condition in which they were before the sale. The property sold must be first returned to the vendor, in the same condition substantially as it was at the time of the sale. If the vendor refuses to receive back the goods, an offer to return is equivalent to an offer accepted by the vendor. But the tender must be unconditional. This is undoubtedly the case where, as in Massachusetts, the law implies an agreement that the goods may be returned if they do not come up to the warranty ( Dorr v. Fisher, 1 Cush. 274); and there seems to be no reason why it should not be so where there is an express agreement to that effect. Nothing but an unconditional tender, such a tender as that the other party has nothing to do but to signify acceptance to make the property in the chattel vest in him, can be equivalent to a return of the goods. And such a tender, or an actual return, must be alleged and proved before the purchase-money can be recovered back, the restoration of the goods and of all other benefits from the sale being always held a direct condition, without which the vendee can neither rescind the contract nor recover back the purchase-money.

In the case at bar, there is no allegation in the petition that the horse was returned; there is no allegation of an unconditional tender. There is a positive allegation of a conditional and clearly insufficient tender; and the proof is that the horse was not returned, and that, when tendered, the tender was always accompanied with a demand for...