German-American Provision Co. v. Jones , 87 Miss. 277 ( 1905 )

Cali-ioon, J.,

delivered the opinion of the court. •

Appellant’s action against appellees is to recover some $2,600, less some $2,000 paid by appellees on account, for “lard” sold. The defense is that the purchase was of warranted “pure leaf lard” and the shipment was of “compound lard,” the market value of which ivas fully covered by the payment.

' The appellant made proof that it kept for sale only two kinds of lard — one “pure leaf,” and the other “compound.” It follows that, if what was delivered was not “pure leaf,” it must have been “compound.” The evidence is overwhelming that it was not “pure leaf,” and that it was, in fact, an inferior quality of “compound.” This is shown by the witnesses Jones, Buford, Berry, Hardy, Murray, and Davis, and by Wertheimer, who was the regular sales agent of appellant at the time of the sale, though he did not officiate in that particular sale — that it was not pure leaf lard. There is no evidence to the contrary of this as to the lard received by appellees. But one witness — the shipping clerk of appellant — testified that he shipped to appellees “pure leaf lard.” Jones testifies, without objection, that Wertheimer, the agent of appellant, inspected it and told him to sell it for “compound” lard, which he did; while Wertheimer’s deposition, nowhere contradicted, shows that he was sent by the president of appellant company to appellees to “investigate and examine the lard and settle the matter and report to him in person, when I found the lard did not look to be first-class, pure lard.” No one disputes Jones in saying that he did agree with the agent on the basis of “compound” lard, as per instruction to do so. The witness Wertheimer says also: “I was sent to Jackson, Miss., by the president of the German-American Provision Company for the purpose of arranging or compromising this dispute. On arrival, Mr. Jones showed me some of the lard, which I found did not look like first-class lard, and I informed the German-American Provision Company accordingly, and advised them to compromise the best way they could.” If he was sent for the purpose of “arranging or compromising,” he had the right to do so, as Jones says he did.

Of course, appellant had no right to require the return of the lard, even if that were possible in this case, without returning the money it had. It neither returned it nor offered to do so>. Before rescission the statu quo must be restored or offered to be restored. Much of the lard was sold as “pure leaf” before discovery of its nonconformance to warranty and reclamation made.

There was no error in refusing appellant’s offer of the books of appellees “for the purjiose of showing the actual loss or gain of J ones Brothers on the car load of lard here in controversy.” If they got compound lard, or were authorized to sell it as such, on compromise adjustment, it is immaterial what they got for it.

Affirmed.