Opinion
No. 29853.
March 7, 1932. Suggestion of Error Overruled April 4, 1932.
1. SALES. When sued for price, buyer using machinery knowing of alleged defects could merely set off difference between price and value.
It appeared that there was no offer to rescind contract of sale by returning machinery and equipment in question to seller, and no offer to show cost of bringing such machinery and equipment up to warranty, and therefore buyer's only right when sued for purchase price was to set off or recoup against such price the difference between it and actual value of machinery and equipment.
2. SALES.
Averment that machinery did not come up to warranty held insufficient as plea of set-off or recoupment of difference between price and value.
APPEAL from circuit court of Attala county. HON. JOHN F. ALLEN, Judge.
Jas. T. Crawley, of Koscuisko, for appellant.
Where machinery is sold under a guaranty that it is mechanically perfect and will do certain specified work, the seller is bound to make such guaranty good, notwithstanding the acceptance of the machinery by the buyer.
Christian Brough Co. v. Goodman Garrett, 96 So. 692, 132 Miss. 786.
The seller having guaranteed machinery to do certain work it was bound notwithstanding the acceptance, to make good the guaranty, since the acceptance would not bind the buyer to pay the whole price if in fact the machine did not answer the guaranty and was less valuable to the buyer on that account.
Stilwell Bierce Smith Vaile Co. v. Biloxi Canning Co., 78 Miss. 779.
Acceptance of goods sold under warranty, but which did not meet the warranty, was not a waiver of the purchaser's claim for damages for the breach.
Bowers v. Southern Automatic Music Co., 74 So. 774.
When a demurrer shall be interposed, the court shall not regard any defect or imperfection in the pleadings, except such as shall be assigned for causes of demurrer, unless something so essential to the action or defense be omitted that judgment according to law and right of the cause cannot be given.
Section 546, Code of 1930.
Because the plea ended as a plea in bar instead of as a set-off, the county should not be denied the right to have a new hearing and have the actual truth presented.
Section 546, Code of 1930.
J. Wesley Miller, of Kosciusko, for appellee.
The general rule is that a breach of warranty only gives rise to an action of claim for damages, and can be pleaded by way of recoupment or offset only in an action for the price.
Christian Brough Company v. Goodman, 132 Miss. 786, 96 So. 692; J.B. Colt Co. v. Mazingo, 141 Miss. 402, 106 So. 533; Rosenbaum v. Davis Andrews Co., 111 Miss. 278, 71 So. 388; Colt Company v. Fuller, 144 Miss. 490, 110 So. 427.
A breach of warranty is not an absolute defense except and unless the purchaser offered to return within a reasonable time that which was purchased and warranted, after discovering the defect. Not only must there be an offer to return, but, if the seller refuses to accept a return, the purchaser cannot afterwards appropriate and use the purchased article.
Colt Company v. Mazingo, 141 Miss. 402, 106 So. 533.
Where the buyer failed to rescind the contract for a breach of warranty for more than a year after purchase, the contract cannot be rescinded, and the buyer is liable for the price, with the right of set-off for the difference between the price and the actual value of the machine.
Colt Company v. Fuller, 144 Miss. 490, 110 So. 427.
In pleading a breach of warranty which is a species of fraud, it is necessary to set forth in the plea what the warranty is that was breached and then allege it was breached.
55 C.J., page 981, sec. 991.
Argued orally by Jas. T. Crawley, for appellant, and by J. Wesley Miller, for appellee.
The Morrissey-Easton Tractor Company, Inc., filed this suit against Attala county, seeking to recover the balance of the purchase price of two tractors and one maintainer sold to the county for use in constructing and maintaining the public roads of the county.
The declaration charges that, by proper orders of the board of supervisors, competitive bids for each of these machines were invited by proper advertisements therefor; that, in response to such advertisements, the appellee, Morrissey-Easton Tractor Company, Inc., submitted bids for furnishing each of said machines specifying in each bid the terms of payment to be made by the county; that, at regular meetings of the board of supervisors, by orders duly entered on the minutes of said board, these bids were accepted by the county as being the lowest and best bids for said machines; and that these several machines were delivered to, and accepted by, the county, and had been continuously thereafter used on the roads of the county.
The declaration also sets forth the payments that had been made on the purchase price of these machines in pursuance of the contracts of sale, and charges that the board of supervisors, after repeated demands, had refused to pay the balance of five thousand one hundred fifty dollars due on these contracts of sale, for which balance recovery is sought herein.
The defendant company filed a plea of general issue, and gave notice thereunder that it would offer evidence to prove that, at the time the said contracts were entered into, the county was without sufficient funds to contract said debt, and, therefore, said contract and debt were void and of no force and effect. It also filed a purported special plea of breach of warranty reading as follows: "And now comes the defendant in the above styled cause, and for plea to plaintiff's declaration filed in said cause says that the said machinery and equipment and supplies were not as guaranteed, and the said price was not as guaranteed and represented, and the said machinery and equipment has not held up, and has not been as represented, and for these reasons, the said defendant denies liability thereon."
To this special plea, the appellee filed a demurrer which was sustained, and the cause proceeded to trial, resulting in a judgment in favor of the appellee for the amount sued for.
For the purpose of the record on this appeal, counsel for the respective parties entered into an agreement to the effect that, after the demurrers to the pleas were sustained, the plaintiff offered proof which was sufficient to establish the contracts as set out in the minutes of the board of supervisors, the acceptance of the machines, and the payments made thereon by said board; that the county thereupon offered to introduce testimony showing that the said machines and equipment so bought were not as guaranteed and represented; that said machines and equipment had not held up, and were not as represented by the appellee; that the price was not as guaranteed by the appellee; and that objections were sustained to the testimony so offered by the appellant.
It was further agreed that the cause might be appealed to this court on this statement of facts.
In the case of Colt Co. v. Mazingo, 141 Miss. 402, 106 So. 533, 534, the rights of a purchaser of goods or machinery which do not come up to the warranty thereof by the seller are stated in the following language: "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. . . . 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."
In the case at bar there was no offer to rescind the contract of sale by returning the machinery and equipment to the seller, and no offer to show the cost of bringing it up to the warranty, but the purchaser kept and used the machinery after knowledge of the defects therein, if any, and consequently its only right when sued for the purchase price thereof was to "set off (or recoup) against such price the difference between it and the actual value of the machinery and equipment." The special plea filed by the appellant, a demurrer to which was sustained, purported to plead in bar of the action a general statement that the machinery did not come up to the warranty thereof or was not as represented. This general averment was insufficient as a plea of set-off or recoupment of the difference between the purchase price and the actual value of the machinery, and consequently the demurrer thereto was properly sustained, as were also the objections to the evidence offered to show a breach of warranty. The judgment of the court below will therefore be affirmed.
Affirmed.