Opinion
No. 30441.
February 20, 1933.
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.
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.
35 Cyc. 290.
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.
24 R.C.L., page 427.
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:
"Gro. Columbia Scale Company, Inc., "Price 634-644 Willock Avenue, N Y "$195.00 Payable $15.00 Monthly. Freight Paid.
"You may ship me (us) one Columbia Weighing Scale, freight paid. It is sold to me (us) with the understanding that I (we) may return it to you with or without reason of any kind within thirty days from date of arrival of the Scales, freight collect, instead of paying the purchase price. Should I (we) not ship it back to you by freight only, within thirty days from date of arrival, I (we) will pay you the purchase price," etc.
In the absence of a provision in the contract of sale to the contrary, the buyer, when the article delivered is defective or unsuited for the purpose for which it was sold and purchased, has the right to rescind the sale and return the article to the seller within a reasonable time, or, when sued for the price thereof, to set off against it the difference between the price of the article purchased and the value of the article actually delivered. But, in a contract for the sale or return of an article, the right of the buyer is measured by the stipulated condition for the return of the article. Here that right was limited to thirty days; consequently that stipulation of the contract must have been complied with in order for the appellant to escape the payment of the price of the article delivered. 55 C.J. 484; Columbia Weighing Machine Co. v. Young, 222 Mo. App. 144, 4 S.W.2d 828; Yerxa, Andrews Thurston v. Macaroni Manufacturing Co., 315 Mo. 927, 288 S.W. 20; Ferguson v. Oliver, 8 Smedes M. 332. But the appellant says that this limitation on his right to return the scale was waived by the appellee, for the reason that he advised it by letter of the defective condition of the scale, and asked for shipping directions, to which he received no reply.
The evidence in support thereof is contained in the following questions and answers appearing in the appellant's testimony:
"A. So I then sat down (referring to a time shortly after he received the scale) and wrote them and asked them the condition of the scales and what they should do and asked them what to do with them and how to dispose of them.
"Q. State to the court and jury whether or not you had written to them the scales were defective and you didn't want them?. A. Yes, sir; I wrote them immediately and sat right down and I've got proof that I did do it, and wrote them and told them and explained just what I have told you about it; I asked them what we could do with the scales that I wasn't satisfied with them.
"Q. State to the court and the jury whether or not you knew exactly how to proceed to get the scales out of your possession? A. No, sir."
The appellant retained no copy of his letter; and the evidence does not disclose that he deposited it in the mails, properly addressed and stamped. The appellee denied receiving any letter from the appellant, except one of a different nature.
Putting on one side the failure of the evidence to disclose the mailing of the letter, properly stamped and addressed, and assuming that the jury would have found that the appellee received, and did not reply to, the letter, that fact would fall far short of constituting a waiver of the limitation of the time within which the appellant had the right to return the scale or of constituting a refusal by the appellee to take it back. The letter did not indicate that the appellant did not know the appellee's address, and therefore did not know to what place to ship the scale; and, leaving out of view the fact that the contract which the appellant signed, but of which he said he had no copy, clearly discloses the appellee's address, the letter itself must have disclosed that he knew the address. He needed no information on this score; and all that he had to do was to deliver the scale to a carrier, consigned to the appellee. We express no opinion, as the case does not call therefor, on what the rights of the appellant would have here been if the whereabouts of the appellee had been actually unknown to him.
Affirmed.