§ 572 SALES be made within a reasonable time, but so long as the seller continues to attempt to remedy the defect in the chattel, such as machinery, and holds out encouragement to the buyer that it will be made as warranted, he is justified in postponing its return." 572. Rejection before Actual Delivery and Acceptance.-If a contract of sale is executory, as in case of the sale of unidentified articles, there is no obligation on the part of the buyer to accept delivery of goods which do not, as to quality, conform to the requirements of the contract, even though the contract contains an express warranty of quality. In such a case the buyer is not required to accept a tender of goods not of the required quality and rely, for relief, on an action on the warranty.8 As said by the federal supreme court, where the subject matter of a sale is not in existence or not ascertained, at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities is not a mere warranty, but a condition, the performance of which is precedent to any obligation on the buyer under the contract; because the existence of those qualities, being a part of the description of the thing sold, becomes essential to its identity, and the buyer cannot be obliged to receive and pay for a thing different from that for which he contracted. And it is very generally held that the buyer of goods by sample may rely on the sample as a warranty of quality, or conformity therewith as a condition precedent to the duty on his part to accept, and may reject the goods if on inspection they do not conform therewith.10 It is otherwise, Exch. 25 L. T. 631, 20 W. R. 115, 6 7. Webster City First National Bank v. Dutcher, 128 Ia. 413, 104 N. W. 497, 1 L.R.A.(N.S.) 142. See supra, par. 528 et seq., as to the general construction and effect of provisions limiting the right of the buyer to a return of the subject matter of the sale in case of a breach of warranty. 8. Pope v. Allis, 115 U. S. 363, 6 S. Ct. 69, 29 U. S. (L. ed.) 393; North Alaska Salmon Co. v. Hobbs, 159 Cal. 380, 113 Pac. 870, 120 Pac. 27, 35 L.R.A. (N.S.) 501; Weil v. Stone, 33 Ind. App. 112, 69 N. E. 698, 104 A. S. R. 243; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 23 A. S. R. 783, 13 L.R.A. 224; Hitchcock v. Griffin, etc., Co., 99 Mich. 447, 58 N. W. 373, 41 A. S. R. 624; Wirth v. Fawkes, 109 Minn. 254, 123 N. W. 661, 134 A. S. R. 778; Howard v. Hoey, 23 Wend. (N. Y.) 350, 35 Am. Dec. 572; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Pierson v. Crooks, Notes: 1 L.R.A. 646; 27 L.R.A. (N.S.) 918. 9. Pope v. Allis, 115 U. S. 363, 6 S. Ct. 69, 29 U. S. (L. ed.) 393. See supra, par. 242, as to the buyer's general duty to accept delivery where the articles tendered do not conform to the requirements of the contract. 10. Weil v. Stone, 33 Ind. App. 112, 69 N. E. 698, 104 A. S. R. 243; Hitchcock v. Griffin, etc., Co., 99 Mich. 447, 290 however, under the general rule which denies the right to rescind for breach of warranty, where the contract is executed so as to pass the title to the buyer, though there has been no actual delivery of possesto him and on tender of possession he discovers that the goods are not of the quality he has the right to expect according to the agreement.11 This is especially true as to executed sales where the buyer has received and consumed a part of the subject matter of the sale. 12 And where the seller of specific oil in barrels to be shipped to the buyer warranted that the barrels would not leak, it has been held that the buyer has no right to reject the shipment on arrival because some of the barrels leaked, but his remedy is by way of a claim of damages for the leakage.18 A distinction has been made between cases where the buyer has had no opportunity to inspect the Commodity and where he has had such an opportunity, and it has been held either on the ground that the contract is executory or on the ground that the passing of title is conditional upon the conformity of the commodity to the warranty that the buyer may still reject the commodity when tendered.14 573. Exercise of Right of Rescission Generally.-Where the right to return the goods for breach of warranty is recognized the buyer must, as in other cases where a right of rescission is sought to be exercised, assert his right promptly upon discovery of the breach, otherwise he will be deemed to have waived this right.15 And where the ley v. 14. Weil v. Stone, 33 Ind. App. 112, 58 N. W. 373, 41 A. S. R. 624; Brant- 13. Gay Oil Co. v. Roach, 93 Ark, Thomas, 22 Tex. 270, 73 Am. 454, 125 S. W. 122, 137 A. S. R. 95, Dec. 264; Azemar v. Casella, L. R. 2 27 L.R.A. (N.S.) 914. C. P. 431, 36 L. J. C. Pl. 124, 16 L. T. N. S. 571, 15 W. R. 998, 23 Eng. Rul. But see Woodruff v. Graddy, 91 Ga. 333, 17 S. E. 264, 44 A. S. R. 33. 27 L.R.A.(N.S.) 922; 23 Cas. 441. Notes: Rul. Cas. 458. Eng. As arising supra, 11. in case of sales by sample, see 69 N. E. 698, 104 A. S. R. 243; Hitchcock v. Griffin & Skelley Co., 99 Mich. 447, 58 N. W. 373, 41 A. S. R. 624; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620, 101 Pac. 233, 35 L.R.Á. (N.S.) 258. Note: 27 L.R.A. (N.S.) 916. 15. Andrews v. Hensler, 6 Wall. 254, H. W. Williams Transp. Line v. 18 U. S. (L. ed.) 737; Pullman Palace Cole Transp. Co., 129 Mich. Car Co. v. Metropolitan St. R. Co., 157 88 N. W. 473, 56 L.R.A. 939; U. S. 94, 15 S. Ct. 503, 39 U. S. (L. Darius 209, Behn E. C. T. N. Eng. Burness, 3 B. & S. 751, 113 ed.) 632; Continental Jewelry Co. v. Bertram, 20 How. 149, 15 U. S. (L. 131 Pac. 595, 50 L.R.A.(N.S.) 783; ed.) 847. Ware v. Houghton, 41 Miss. 376, 93 Notes: 56 L.R.A. 943; 27 L.R.A. Am. Dec. 258. See also Cream City (N.S.> 12. 15 U. 914. Glass Co. v. Friedlander, 84 Wis. 53, yon v. Bertram, 20 How. 149, 54 N. W. 28, 36 A. S. R. 895, 21 S. (L. ed.) 847. L.R.A. 135. $ 574 SALES facts are not in dispute the question whether the attempted rescission was within a reasonable time has been held to be a question of law for the determination of the court,16 though it has also been held that what is reasonable diligence is a question of fact, to be decided by the jury according to the special circumstances of each case.17 The institution by the buyer of an action for damages for breach of the warranty or the interposition of a counterclaim therefor is a waiver of any right to rescind on account of such breach.18 It has been held in case of an exchange of property that, where there is a breach of warranty by one of the parties, the other after a rescission and demand for the return of the property which he has parted with may enter upon the land of the other party, even against his protest, to retake the property so demanded without incurring any liability for trespass. 19 574. Restoration by Buyer Generally.-As in case of rescission for other causes, such as fraud,20 a return of the goods is essential to a rescission for breach of warranty, and ordinarily a return of all the goods purchased must be made; the buyer will not be permitted to retain a part and return the balance. Thus where a cow with calf at her side was sold for a gross price, the contract providing that the sale should be considered as a sale of a single animal, it has been held that, to entitle the buyer to rescind for breach of warranty as to the breeding qualities of the cow, both the cow and the calf must be returned. On the other hand where a number of articles are sold at the same time, and a separate price agreed on for each, there may be a rescission as to a portion of the articles, as the contract is not entire. It is not sufficient for a buyer who has taken delivery of the Notes: 9 L.R.A. 611; 36 L.R.A. (N.S.) 470. 16. Continental Jewelry Co. v. Pugh Bros., 168 Ala. 295, 53 So. 324, Ann. Cas. 1912A 657 (holding that an allegation in a pleading that the offer to rescind was made within a reasonable time was an allegation of a conclusion of law and therefore improper). Note: 36 L.R.A. (N.S.) 474. 17. Andrews v. Hensler, 6 Wall. 254, 18 U. S. (L. ed.) 737. 18. Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325, 129 A. S. R. 670; Davis v. Schmidt, 126 Wis. 461, 106 N. W. 119, 110 A. S. R. 938. 103 A. S. R. 58; Hauss v. Surran, 168 Ky. 686, 182 S. W. 927, L.R.A.1916D 997; Perley v. Balch, 23 Pick. (Mass.) 283, 34 Am. Dec. 56; Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325, 129 A. S. R. 670; Brantley v. Thomas, 22 Tex. 270, 73 Am. Dec. 264. Note: 34 Am. Dec. 56. 2. Lyon v. Bertram, 20 How. 149, 15 U. S. (L. ed.) 847; White v. Miller, 132 Ia. 144, 109 N. W. 465, 8 L.R.A. (N.S.) 727; Perley v. Balch, 23 Pick. Clark (Mass.) 283, 34 Am. Dec. 56; v. Baker, 11 Metc. (Mass.) 186, 45 Am. Dec. 199. Notes: 8 L.R.A. (N.S.) 727; Ann. 19. Smith v. Hale, 158 Mass. 178, Cas. 1912A 663. 33 N. E. 493, 35 A. S. R. 485. 20. See infra, par. 647 et seq. 1. Eastern Granite Roofing Co. v. Chapman, 140 Ala. 440, 37 So. 199, 3. White v. Miller, 132 Ia. 144, 109 N. W. 465, 8 L.R.A. (N.S.) 727. 4. Costigan v. Hawkins, 22 Wis. 74, 94 Am. Dec. 583. 292 33 goods at the seller's place of business merely to express a willingness or make & proposal to return the goods, or simply to give notice to the seller that he holds the goods subject to his order, or to request him to come and take them back. If he would rescind the contract, he must return or tender back the goods to the seller at the place of delivery, unless on making the offer so to do he is relieved of the obligation by a refusal to receive them if tendered. An offer to return, where it is refused, answers the same purpose as an actual return, provided the property is retained for the benefit of the seller whenever he may choose to receive it. Where the breach of warranty is set up in bar of an action for the price and not in recoupment or as a counterclaim. it must be alleged that a return of the property was tendered or that it was worthless." 575. Effect of Continued Use of Property.-Where the article is one which must be used before its quality can be ascertained, this not being apparent from examination, it is the right of the buyer to make use of the property or such portion thereof as may be actually necessary to determine the quality, and such use does not affect the right to reject for failure to comply with the contract in that respect. On the other hand if, after knowledge of the breach of warranty as to quality, the buyer continues to use and consume the goods received by him, but not in order to make a proper test as to quality, he waives his right to reseind and return the amount unconsumed. It is no excuse for the continued use and consumption that it is required by the exigencies of the buyer's business,10 and it is also immaterial that the buyer, while continuing to use and consume the property, made objections to the quality; 11 and the fact that the further use or consumption of the goods, after knowledge of defects in quality, was for the purpose of establishing evidence of their defective quality will not prevent such use from constituting a waiver of the right to return.12 The right to pia Brewing Co., 64 Wash. 461, 117 Note: 8 L.R.A. (N.S.) 728. This same rule applies where the Pac. 241, 36 L.R.A. (N.S.) 467; Cream right to rescind is based on fraud, and City Glass Co. v. Friedlander, 84 Wis. the not 5. Contract of sale is severable and entire. See infra, par. 649. 115 N. W. 325, 129 A. S. R. 670. Mundt v. Simpkins, 81 Neb. 1, 6. Gale Sulky Harrow Mfg. Co. v. 53, 54 N. W. 28, 36 A. S. R. 895, 21 L.R.A. 135; Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669, 14 L.R.A. (N.S.) 1107. Notes: 36 L.R.A. (N.S.) 468; L.R.A. Stark, 45 Kan. 606, 26 Pac. 8, 23 A. 1916F 481. S. R. 7. 739. Eastern Granite Roofing Co. v. 10. Note: 36 L.R.A. (N.S.) 469. Chapman, 140 Ala. 440, 37 So. 199, 64 Wash. 461, 117 Pac. 241, 36 L.R A. 103 8. S. R. 58. Notes: 36 L.R.A. (N.S.) 469. See supra, par. 259 et seq., as to what constitutes acceptance generally. 9. 15 U (N.S.) 467. Note: 36 L.R.A. (N.S.) 468. 12. Cream City Glass Co. v. Friedlander, 84 Wis. 53, 54 N. W. 28, 36 Lyon v. Bertram, 20 How. 149, A. S. R. 895, 21 L.R.A. 135. rescind is also lost, as a general rule, by a resale by the buyer of a part of the property, after knowledge of the breach of the warranty, as this precludes the return of all the property.13 576. Effect of Injury to or Deterioration of Property.-It is generally held that a rescission cannot be had where the property, while in the possession of the buyer, has been damaged to such an extent that the parties cannot be placed in statu quo, especially where such injury is due to the negligence of the buyer. 14 Thus where an automobile is sold with warranty, the buyer cannot rescind for a breach after the car has been damaged while in his hands through negligent driving.15 But it has been held that if the seller warrants that a vehicle will carry a certain load, and on being subject to such load one of the springs breaks, the fact that the spring is so broken does not defeat the right to return the vehicle and rescind the contract.16 So, where a stallion was sold with warranty as to breeding qualities, the fact that the animal had deteriorated in condition after the time of the sale, due to the further development of a disease with which he was then afflicted, has been held not to deprive the buyer of the privilege given him to return the animal if not as warranted, though the warranty also required the animal to be returned in "as sound and healthy condition" as he was at the time of the sale. Also where the right to return was expressly given in the contract of sale if the horse sold did not come up to the warranty, it has been held that the fact that it was accidentally injured without fault on the part of the buyer did not deprive him of the right of return.18 577. Qualification of Rule as to Complete Restoration.-Where the article is such that it must be used or partly consumed before the quality can be ascertained, it not being apparent from examination, it is the right of the buyer to make use of the property or such portion thereof as may be necessary to determine the quality; and such use does not deprive him of his right to rescind for breach of the warranty.19 And where a commodity is sold to be resold by the buyer, in the course of his business, and the defect in the quality could not be expected to be ascertained until the commodity reached the hands of the ultimate consumer, it has been held that the fact that by reason of such resale the buyer is unable to return all of the goods does not 13. Continental Jewelry Co. v. Pugh, 16. Smith. Hale, 158 Mass. 178, 168 Ala. 295, 53 So. 324, Ann. Cas. 33 N. E. 493, 35 A. S. R. 485. 1912A 657. 14. Burnley v. Shinn, 80 Wash. 240, 141 Pac. 326, Ann. Cas. 1916B 96. Notes: 3 L.R.A. (N.S.) 678; Ann. Cas. 1916B 97. 15. Burnley v. Shinn, 80 Wash. 240, 141 Pac. 326, Ann. Cas. 1916B 96. 17. Rosenthal v. Rambo, 165 Ind. 584, 76 N. E. 404, 3 L.R.A. (N.S.) 678. 18. Head v. Tattersall, L. R. 7 Exch. 7, 14, 41 L. J. Exch. 4, 25 L. T. 631, 20 W. R. 115, 6 Eng. Rul. Cas. 566. 19. Note: 36 L.R.A. (N.S.) 469. |