Howe v. Fulton , 225 Ill. App. 589 ( 1922 )

Mr. Justice Gridley

delivered the opinion of the court.

It is first contended by counsel for defendant that the court erred in giving certain instructions contained in the oral charge to the jury, and also in refusing to give certain written instructions requested by defendant. Rule 8 of the rules of the municipal court, contained in the present record and properly certified, provides that objections to the giving or refusing of oral instructions must be specific and made immediately upon the conclusion of the charge and before the jury retire. It appears that in the present case at the conclusion of the oral charge the court inquired if the attorneys had any objections to make, whereupon the attorney for the plaintiffs made a general objection and exception, and then the court asked if the objection referred to the instructions not given, and, upon said attorney replying in tbe affirmative, the attorney of defendant said: “And the same here.” No specific objections were made to the court’s charge by either attorney. Under said rule 8 and numerous decisions it is well settled that, in order to preserve for review any alleged error in the oral instructions, objections thereto should specifically point out the portions of the charge objected to. (Grollman v. Lake Geneva Piano Stool Co., 147 Ill. App. 332; Pecararo v. Halberg, 246 Ill. 95; Briggs v. Joseph & Bros. Co., 175 Ill. App. 438.) And it has been decided that in the municipal court where the jury is instructed orally the court may properly refuse to give written instructions submitted, even though they contain proper elements. (Morton v. Pusey, 237 Ill. 26, 34; Briggs v. Joseph & Bros. Co., supra.) We have, however, considered the court’s charge and defendant’s refused instructions, in connection with defendant’s claim of set-off and the facts as disclosed in the present record, and are of the opinion that on the real issues of fact in the case the jury were fairly and sufficiently instructed and that defendant was not prejudiced by the court’s action in refusing to give any of the offered instructions.

In subsection 1 of section 69 of the Uniform Sales Act (Cahill’s Ill. St. ch. 121a, ¶ 72) it is provided:

“(Remedies for breach of warranty.) (1) Where there is a breach of warranty by the seller, the buyer' may, at this (his) election—

“ (a) Accept' or keep the goods and set up against the seller, the breach of warranty by way of recoupment in diminution or extinction of the price.

“(b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty.

“(c) Refuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for the breach of warranty.

“(d) Rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid.”

When, after plaintiffs had installed the machinery, piping and other equipment and, as they claimed, had completed their contract and had demanded payment of the balance of the purchase price, defendant wrote plaintiffs the letter of September 12, 1919, he then made his election to rescind the sale. He therein stated that he would not pay plaintiffs any more money and he demanded the return of the $950, which he had previously paid plaintiffs, and that they remove the machinery from his premises at once. He further stated, in substance, that he made these demands because the machinery and equipment had not been installed and operated by May 1, 1919, as stipulated, and because plaintiffs had not run a full three days’ test after completion as agreed, and because plaintiffs had not equipped the plant with ample refrigeration to keep the ice storage at the proper temperature as guaranteed. The evidence clearly showed that defendant" by his acts had waived his right to cancel the contract and rescind the sale on account of the failure of plaintiffs to complete their contract by May 1, 1919. Indeed, counsel for defendant in their reply brief concede this. As to the provision in the contract relative to plaintiffs’ running a three days’ test after completion, the evidence showed that, after the machinery and equipment had been fully installed and the plant operated, a test thereof was run for three successive days, early in August, 1919, at which time the temperature of the room, without any ice in it, was reduced during very warm weather about 30 degrees, and when the building or room had not been properly insulated by defendant by the use of dry sawdust, which, as defendant’s expert witness testified, is a partial nonconductor of heat, while wet sawdust is a conductor. And it is to be noticed that the provisions of the contract as to the three days’ test do not condition defendant’s acceptance of the plant upon any particular showing made during said test, there being no guaranty to reduce the temperature of the room to any stated degree or degrees. Counsel for defendant admit in their printed argument that defendant did not attempt to cancel the contract because of plaintiffs’ failure to run a proper three days’ test. By virtue of defendant’s said election to rescind the sale the main issue of fact to be determined by the jury therefore was, whether the plant had been equipped with ample refrigeration to keep the ice storage at the proper temperature, and as to this issue the testimony was conflicting, and we think the court in the oral charge fully and fairly instructed the jury as to this issue. During the trial defendant filed his claim of set-off in which he claimed damages in the total sum of $2,837.69, being (1) for the money he had previously paid on account, $950, and (2) for money expended in preparing the storage house for the installation of the machinery and equipment, $887.69, and (3) for loss of profits, $1,000. The first claim is based evidently on the theory of a rescission of the sale and the other two on the theory of an affirmance of the sale and damages for a breach of the guaranty or warranty contained in the contract. These theories are inconsistent. We understand it to be the law that a buyer, when sued for the balance of the purchase price, cannot set up as a defense the rescission of the contract and a claim for the amount already paid on the purchase price, and at the same time claim damages for a breach of the contract. (Houser & Haines Mfg. Co. v. McKay, 53 Wash. 337; Blake-Rutherford Farms Co. v. Holt Mfg. Co., 70 Wash. 192; Abraham v. Browder, 114 Ala. 287, 290.) In 30 Amer. & Eng. Encyc, Law (2nd Ed.), p. 199, it is said: “The buyer may not pursue two inconsistent remedies; if he chooses to exercise the special remedy by returning the article to the seller, he is then confined to a recovery of the purchase money paid, and cannot maintain an action to recover damages for a breach of the warranty.” In Williston on Sales, sec. 612, p. 1017, it is said: “It seems to be generally assumed that if the buyer elects the remedy of rescission he is thereby precluded from bringing an action for damages, and it has been so decided. The Sales Act adopts this rule.” And it has been decided that under this Sales Act a buyer has four distinct courses open to him in case of a breach of warranty, but, having adopted one, no other remedy is available to him. (Impervious Products Co. v. Gray, 127 Md. 64, 69.) And the two inconsistent remedies cannot both be prosecuted at the same time. (Park v. Richardson & Boynton Co., 81 Wis. 399, 402.) In giving the charge in the present case the court evidently proceeded upon the theory, and we think properly so, that defendant’s letter constituted an election by him to rescind the sale and to attempt to recover back what he had already paid. That defendant did not afterwards change his position as taken in the letter is evidenced by the facts that he himself introduced said letter in evidence, and that in his claim of set-off filed during- the trial he claimed the right to recover the money back. He also in said claim of set-off made other inconsistent claims which he attempted at the same time to enforce.

It is also contended by counsel for defendant that the court erred in refusing to allow defendant’s witness, Bright, to answer certain questions as to his opinion of the value of the machinery and equipment as now contained in the building. The argument is that this testimony should have been admitted because it would have tended to show the damages sustained by defendant, viz., the difference between the value of the machinery and equipment as installed and their value if they had complied with the contract. We think this testimony was properly rejected because of defendant’s said election and because, by the offered testimony, defendant sought to inject into the case his two inconsistent theories and his right to recover damages on each. The objection to the questions were properly sustained for another reason. The evidence disclosed that since the installation of the plant defendant had made no use of it, and it had remained idle and unattended. Its value at the time of the trial, under those conditions, would not show its value as when installed and in working condition.

Complaint is also made that the court erred in rejecting certain testimony of the defendant relative to the loss of probable profits which defendant might have made from the sale of ice during the summer which he expected to get from Mr. Anderson and could have stored in the building, had the plant been completed by May 1, 1919. We think that the admission of the testimony was properly refused -because of defendant’s said election and, further, because the expected profits were too remote, contingent and speculative (Williston on Sales, sec. 614, p. 1024; Benton v. J. A. Fay & Co., 64 Ill. 417, 422; Frazer v. Smith, 60 Ill. 145,147); and because it appears that defendant waived the provision as to time of completion of the plant. And in our opinion the court did not err in rejecting testimony offered by defendant relative to the amounts expended in getting his building ready for the installation of the machinery and, equipment. Complaint is also made that the court erred in permitting plaintiffs’ witnesses to testify as to the difficulties encountered during the progress of the work of installation in getting necessary materials from third parties, thereby causing the delay in the time of the completion of the plant. We do not think any prejudicial error was committed in these particulars, especially in view of the clause in the contract that all agreements were contingent upon strikes “or other causes beyond our control.” (35 Cyc. 248; Consolidated Coal Co. v. Mexico Fire-Brick Co., 66 Mo. App. 296; Hatfield v. Thomas Iron Co., 208 Pa. 478.) Furthermore, as above stated, the evidence clearly discloses that the delay in the completion of the work, as a basis for a rescission of the sale, was waived by defendant.

It is finally contended that the verdict is contrary to the manifest weight of the evidence. After a careful consideration of the evidence we are unable to say that this is so.

For the reasons indicated the judgment of the municipal court is affirmed.

Affirmed.

Barnes, P. J., and Morrill, J., concur.