Nu-Enamel Paint Co. v. Davis

On Motion for Rehearing.

In opinion on original hearing it was stated in effect that the uncontradicted testimony of plaintiff was that the reason for his continued efforts to sell the paint after he had rescinded the contract was to save loss which would have resulted from a deterioration in value while being held in the store. Upon a further examination of the record we have discovered that that statement is incorrect and it is now herewith withdrawn.

Appellee, Davis, testified in substance that before the 1st of January, 1932, he was told repeatedly that other dealers in Fort Worth had been selling and were still selling the same paint at a lower price than he was offering it; that he made repeated complaints to Lloyd, appellant’s representative, of those rumors and on each occasion Lloyd promised to fake up from those dealers all the stock they had on hand, which he failed to do; that finally he notified Lloyd of his intention to rescind his contract with the paint company and thereupon offered to return the paint then on hand and demanded the return of the money he had paid out thereon, which demand was refused.

Appellee testified in part as follows:

“Q. Now, as to this paint that you had on hand, what was the condition of it — in your opinion, would it keep and be good? A. I have had some of it that dried up.

“Q. Dried up? A. Yes, sir; in other words, it seemed like the pigment would go down to the bottom of the can, and I had to make several cans good.

“Q. Had to make them good? A. Yes, their Peter Pan blue, they call that color, that color, in particular, it got to where it was more of a grey than it was a blue.

“Q. What did you do with this paint that they would not take back and wouldn t give you your money on? A. Well, I could not get my money back, and I didn’t know for sure if I was going to get my money back, so I — I had been told that I couldn’t get anything out of them, and so I went ahead and tried to sell a lot of it, kept trying to sell it, and I sold all that I could, but my expenses generally were greater than my profits.

“Q. And you abandoned that? A. Yes, sir, I abandoned that.

“Q. Now the expense that you incurred there, was it reasonable and necessary? A. Yes, sir.

“Q. In order to make those sales? A. Yes, sir, absolutely.

“Q. Now, when you concluded that you couldn’t sell this paint, what did you do with it — did you have it on hand — have a balance on hand? A. Yes, and I have the balance on hand, and I have it stored.”

The statement that is withdrawn as shown above was occasioned by reason of the first portion of the above testimony, to the effect that the paint deteriorated while being held hy appellee after appellant had refused to accept a return of it. It is insisted by appellant that the foregoing testimony shows conclusively that the act of Davis in selling the paint left on hand was for the purpose of reimbursing himself for the money which he had paid appellant therefor, and therefore that act showed a waiver of his right of rescission. We are unable to concur in that view. In the first place his right of rescission had theretofore accrued when he notified appellant of his intention to rescind and demanded a return of his money and had tendered back to appellant all the paint left on his hands. Then, too, whether or not he waived his right to a rescission involved the issue of his intention so to do, which was a disputed issue to say the least; and the act of selling the paint in order to reimburse himself would not of itself establish such waiver. Witherspoon Oil Co. v. Randolph (Tex. Com. App.) 298 S. W. 520.

Furthermore, the following was said in 2 Black on Rescission and Cancellation, § 629, p. 1455: “When the seller of goods persistently refuses to take them back, after being notified of the rescission of the sale by the purchaser for sufficient cause, it is proper, if not obligatory, for the purchaser to take such measures as are expedient to save unnecessary loss to the seller, and if the best method of accomplishing this end is to sell the property (as, in the case of perishable goods) he may sell it ‘for account’ of the vendor for the best price obtainable, and retain out of the proceeds enough to reimburse him for necessary expenses, and hold the balance subject to the vendor’s demand.”

That authority was also cited with approval in Alexander v. Walker (Tex. Civ. App.) 239 S. W. 309.

Moreover, the issue whether or not ap-pellee elected to waive his right of rescission of the contract with appellant and recover back what he had paid on the contract and the expenses incurred in endeavoring to sell the remainder on hand was not submitted to the jury, nor did appellant request its submission, and therefore it waived that defense, at all events, under the decision of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

The motion for rehearing is overruled.