Morse v. Brackett , 98 Mass. 205 ( 1867 )

Bigelow, C. J.

This case comes within the familiar principle that no contract can be rescinded unless both parties are restored to the condition in which they were before the contract was made. One party cannot insist on the validity of a contract as to one portion of the subject matter, and claim to set it aside or avoid it as to the residue. The vendee of a specific quantity of merchandise sold under an entire contract cannot retain a portion to his own use and return the remainder to the vendor. If he receives and holds a part, he will be liable in assumpsit for the whole. If on the ground of fraud or breach of warranty, or for other reason he seeks to rescind the contract, he must return the whole of the merchandise. If he fails to do this, his remedy is either by action against the vendor, or by a reduction of damages in an action by the vendor for the price. Conner v. Henderson, 15 Mass. 319. Bowker v. Hoyt, 18 Pick. 555. Clark v. Baker, 5 Met. 452, 461. There can be no doubt in the present case that the wool was sold to the defendant under an entire contract. The bales were kept by themselves, separated from all other merchandise of like kind in the plaintiff’s store; they all had the same distinctive mark; they were shown to the defendant as one lot or parcel of a particular kind of wool; and they were sold to him at one and the same time, and for one and the same price per pound; and the whole number were delivered to him together under a single bill of parcels. It is difficult to see how the elements constituting an entire contract can be more fully combined than in this sale. There is no ground on which any separation or distinction between the different bales can be made so as to lay the foundation of a claim to retain a portion and return the residue to the vendor. The defendant is therefore liable to an action for the price of the whole number of bales, as well for that which he returned to the plaintiff as for those which he kept and used. Upon this point the instructions given to the jury were erroneous.

The case is wholly unlike that of Gardner v. Lane, 12 Allen, 39. There had been no completed sale of the property in controversy in that case. The minds of the contracting parties had never met upon the subject matter of the sale. In the case at bar both parties fully understood that they were negotiating concerning a specific lot of wool, and agreed on the particular bales concerning which they entered into a contract. There was no mistake as to the corpus of the property which the plaintiff agreed to sell and the defendant to buy. The only mistake was as to the quality of a portion of the merchandise. Such a mistake, although it gave the defendant the right to rescind the contract and return the property, of which he might have availed himself, did not operate to sever the contract or to prevent the title of that part of the wool which did not conform to the warranty from passing to the defendant after he had elected to retain the other portion. Exceptions sustained.

At the new trial, before Vose, J., the facts appeared in evidence substantially -as before, with the addition that the plaintiff testified that the wool was consigned to him by John C. Parsons of Chicago, and the defendant testified that at the time of his purchase the plaintiff’s clerk informed him that the bags he had examined would represent the lot.

The defendant also proposed to offer evidence of a custom of wool-dealers, in case of a purchase of a lot of wool under warranty, which on inspection proves to contain bales of a different kind than that intended to be purchased, to return such bales tc the vendor, and retain the residue of the lot; but the judge ruled that such evidence would be inadmissible.

The defendant further presented prayers for instructions to the jury, including one that, if they should find that the bale in question was not in fact combing pulled wool, “then the defendant would be liable for such price only as it was reasonably worth at the sale; ” but these prayers the judge refused, and directed a verdict for the plaintiff for the full amount claimed by him; and the defendant alleged exceptions, which were argued in March 1868. »

R. B. Caver ly, for the defendant.

J. C. Dodge, for the plaintiff.

Foster, J. When this action was previously before the court, it was held that the sale of the eight bags of wool was one entire contract, and that the right of rescission for breach of warranty could not be exercised as to a single bag. At the last trial the defendant’s counsel offered to prove a custom in the wool trade by which in such a sale the purchaser may return a bale of wool which proves to be of a different kind from the article intended to be purchased, retaining the residue. To support the admissibility of such evidence of usage he relied upon Clark v. Baker, 11 Met. 186.

But, upon the facts disclosed by the evidence, the court are of opinion that proof of such a usage would have been unavailing and was properly rejected. The wool was taken out of the bag in which it was sold, and that was not returned. The value of the bag may have been very little, but it was something; and by the loss of the marks upon it the present plaintiff may have been prevented from returning it to the party from whom he purchased it or from satisfying his principal, if he acted as factor in making the sale, of the identity of the article.

By the law of Massachusetts, a sale of personal property with warranty may be treated as a sale upon condition subsequent, at the election of the vendee, who, if the warranty is broken, may return the property and rescind the sale. But the right of rescission is limited to cases where the vendor can be put in statu quo as before the contract. Hunt v. Silk, 5 East, 449. Kimball v. Cunningham, 4 Mass. 502. Conner v. Henderson, 15 Mass. 319. In the case last cited it was held that a purchaser of worthless lime could not rescind the salé without returning the casks. He who would rescind a contract must put the other party in as good a condition as he was in before. Perley v. Balch, 23 Pick. 283. In the present instance this was not done. The bag in which the wool was contained does not appear to have been absolutely worthless. It must have had some pecuniary value. And its value as the means of identifying the article may have been considerable.

But upon another ground we think there must be a new trial. The defendant’s answer set up a warranty and breach of it; and, although the evidence offered would not defeat the entire action, yet we think it was admissible in reduction of damages. The facts set up in the answer are not available for the entire purpose for which the defendant relied upon them, but they may be proved with the lesser effect of reducing the amount of the plaintiff’s claim. This point was distinctly taken by the de fendant. He insisted that he was liable for such price only as the wool was reasonably worth at the sale. This rule of damages was not strictly accurate. But the presiding judge directed a verdict for the plaintiff for the full amount claimed in the writ. He should have left the question of damages to the jury, with instructions that, if a warranty and breach of it had been proved, they should allow the defendant, by way of deduction from the agreed price, the difference between the actual value of the article sold and what would have been its value if it had corresponded with the warranty.

Exceptions sustained.