J. B. Colt Co. v. Mazingo , 141 Miss. 402 ( 1926 )

The appellant sued the appellee on a promissory note, and from a judgment in the appellee's favor has brought the case to this court. The evidence on which the case was submitted to the jury is, in substance, as follows:

The appellee purchased from the appellant a lighting plant, and executed to it therefor the promissory note sued on. The contract of sale was in writing, and one of its provisions is — "that in accepting this order the company warrants the apparatus furnished to be thoroughly durable, galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and that it is on the permitted list of the National Board of Fire Underwriters."

The plant was installed by an agent of the appellant, and was accepted by the appellee by a written statement, setting forth, among other things, that "the installation is complete and satisfactory." According to the evidence for the appellee, the acetylene generator would not and could not be made to work automatically; consequently he was unable to use the plant at all. The appellant was notified that the generator would not work automatically and it sent an agent there who tried, but could not, according to the evidence for the appellee, remedy the defect. The appellee claims to have offered to return the machine to the appellant, his evidence relative thereto being contained in the following questions and answers:

"Q. Did you ever offer this machine back to them? A. Yes, sir.

"Q. You say you offered it back? A. Yes, sir; and wrote them for shipping instructions."

The appellee's evidence with reference to the value of the plant in the condition in which it was delivered is contained in the following question and answer:

"Q. State to the jury whether or not the plant is worth anything at all to you as a lighting plant? A. No, sir; it is not worth anything. I would give something to get it out of the way."

The court below charged the appellee for the defendant — "that, if you believe from the preponderance of the testimony that the light plant in question failed to measure up to the contract in this case, or that it was not automatic in action, then you should find for the defendant."

Where goods are sold with a warranty of their character or quality, the purchaser, after accepting the goods, on discovering that they are not of the character or quality warranted, may rescind the contract by returning or offering to return the goods to the seller, or he may keep the goods, and, when sued for the price therefor, may set off against such price the difference between it and the actual value of the goods delivered. In other words, the seller in such a suit can recover the actual value of the goods delivered. The offer to return the goods in order to constitute a rescission of the contract must be made within a reasonable time after the discovery by the purchaser of the defects therein; and, if such offer is declined by the seller, the goods must not thereafter be appropriated by the purchaser to his own use. Ware v. Houghton, 41 Miss. 370, 93 Am. Dec. 258;Caver Gin Machine Co. v. Gaddy, 62 Miss. 201; Stillwell v.Biloxi Canning Co., 78 Miss. 779, 29 So. 513; Colt Co. v.Odom, 136 Miss. 651, 101 So. 853.

Where the purchase is of machinery which falls below, and which can be brought up to, the warranty thereof by the seller, the purchaser, if he uses the machinery after knowledge of its defects, when sued for the price thereof, can set off against such price only the amount necessary to be expended in bringing the machinery up to the warranty. Alig v. Lackey, 114 Miss. 392, 75 So. 139.

The rescission of the sale here claimed to have been made does not come within the foregoing rules therefor, for it does not appear when the offer to return was made, nor what disposition the purchaser thereafter made of the machinery. Assuming that the evidence is sufficient to show that the machinery could not by the expenditure of a reasonable amount therefor be brought up to the warranty, the measure of the appellee's damages is the difference between the purchase price of the machinery and its value in the condition in which it was delivered to him. The evidence does not disclose what this value was. It simply discloses that the machine was of no value as a lighting plant. But it does not follow therefrom that the machinery was without any value at all.

It follows from the foregoing views, first, that the instruction hereinbefore referred to should not have been granted, and, second, the verdict is not sustained by the evidence.

Reversed and remanded.