Opinion
No. 30367.
February 6, 1933.
SALES.
Buyer of flour held to have waived defective condition thereof by giving unpaid checks covering full payment and repeated promises to pay fully.
APPEAL from circuit court of Covington county. HON.E.M. LANE Judge.
W.U. Corley, of Collins, for appellant.
Appellee as a business man and a merchant carried no other grade of flour in stock for more than a year, and he continually paid on this account, until he had paid seven hundred seventy-eight dollars and four cents, and made the last payment without murmur or protest on April 4, 1929, more than a year after he received the flour.
A buyer has the right of one of two courses. First. He must within a reasonable time, return, or offer to return the goods, and all the goods, or second, he may keep the goods, and when sued for the price, offset the difference between the sale price and the actual value, but in either case, an offer of return within a reasonable time must be made. If the return is refused by the seller, then the buyer must not further use the product, or goods.
Buyer's failure to notify seller of the defect amounting to a breach in sale contract for more than one year after purchase, held, so unreasonable as to preclude rescission of the contract.
Colt v. Mazingo, 106 So. 533; Tropical Paint Oil Company v. Mangum and Hatcher, 125 So. 248.
Buyer taking goods shipped on written order and retaining part without agreement for return of balance constitutes acceptance of entire shipment.
Colossus v. Fair Lumber Company, 136 So. 919.
Waiver of defense that car bought as new had been used was waived by buyer, after discovering the fact, keeping and using it, and in consideration of extension of time, gave a renewal note.
Brewer v. Automobile Sales Co., 111 So. 578.
It is the duty of one intending to rescind a contract to give the other party, within a reasonable time, notice of his disaffirmance.
Continental Jewelry Company v. Pugh, 168 Ala. 295.
One cannot wait until suit is brought for the payment of the debt or enforcement of the contract to set up his grounds. This is especially true if there has been considerable elapse of time since his discovery of the facts.
Black on Rescission and Cancellation, section 541.
T.W. Cranford, of Seminary, and McIntosh McIntosh, of Collins, for appellee.
If the buyer of goods determines to accept a shipment, although the buyer has a right to rescind, he may accept the shipment, dispose of the goods, and then sue the seller for breach of warranty, or even set off or recoup any damages sustained because of a breach of warranty.
J.B. Colt Co. v. Mazingo, 106 So. 523.
If the appellant sold the tractor under a guarantee that it was mechanically perfect, and would do certain specified work, it is bound, notwithstanding the acceptance of the tractor by the appellee, to make such guaranty good, and the appellee would have the right, in an action for the balance of the purchase money to recoup the damages suffered in consequence of the breach of warranty.
Christian Brough Co. v. Goodman Garrett, 96 So. 692.
There is nothing to prevent a set-off for the rotten flour, unless the appellee, Jack Conner, waived his right to set-off; we concede that all rights for rescission were waived.
Stillwell Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513; Bowers v. Music Co., 114 Miss. 25, 74 So. 744.
It appears from the evidence in this case that the trial judge properly let the jury determine the amount of damages, if any, sustained by appellees, because of the rotten condition of the flour, which was a breach of the "money back if not satisfied" warranty, which was written on the flour sacks by the company.
When the buyer of goods seeks a set-off, the rigid rule of accountability for every article is of no consequence since it is not necessary for the buyer to prove that a tender of the goods was made to the seller, and further that every article was intact or that the benefits from all sold articles was also tendered.
The right to recoup was not waived by the giving of the three checks to renew the obligations.
A principal cannot retain the benefits of an agent's act, after discovery of all the facts concerning the transaction, without the burdens thereof.
2 Corpus Juris 482, sec. 99.
On March 23, 1928, the appellant, manufacturer of flour, shipped to the appellee a car of flour, invoiced and valued at nine hundred eleven dollars, which was accepted by the appellee. The appellee made payments during 1928 and 1929 amounting to seven hundred seventy-two dollars, leaving a balance due on the purchase price of the flour of one hundred thirty-nine dollars. In September, 1929, suit was instituted for this balance in the court of a justice of the peace. On the 7th day of February, 1930, a judgment by default was entered in the said justice court, and thereupon the appellee appealed to the circuit court. In the circuit court the cause was continued from time to time until the July, 1931, term of court, when, for the first time, the appellee filed a plea of recoupment, alleging that he had suffered a loss to the amount of the balance sued for, an account of the fact that the flour was damaged and unfit for human consumption. On the trial of the cause there was a verdict and judgment in favor of the appellee, from which this appeal is prosecuted.
The appellee testified that he discovered the defective condition of the flour shortly after he placed it on the market; that he reported that fact to a representative of the appellant and offered to return the flour; that upon the assurance of this representative that he would assist him in securing an adjustment of the matter, he continued to try to dispose of the flour, but was unable to dispose of all of it; that some of it was sold for hog feed, some thrown away, and some burned when his store building burned. The evidence, however, shows that the appellee continued to make payments on the account from time to time until all had been paid except the balance of one hundred thirty-nine dollars sued for; that in May, 1929, he executed and delivered to appellant three postdated checks for fifty dollars each to cover the balance then due; and that these checks were not paid by the bank on which they were drawn on account of the fact that appellee had "insufficient funds" on deposit in the bank to pay them.
On July 30, 1929, after the last of these checks had been dishonored, the appellee wrote appellant's attorney a letter in reference to the account, saying, among other things, that: "At the time I started to make payment on this account I had the assurance from their representative that they would not sue and would give me time in which to pay same. . . . You well know conditions at this time and it seems as though it is impossible for me to make any collections for at least two weeks, however at that time I will be able to make payment covering this. I admit I owe the account in full and will not fight the suit if you see fit to start same. However I have proof of the above assurance given me and will have to use same. I do hope that you will be able to defer this suit for a while and give me the chance to settle without further expense to me."
On September 13, 1929, after the appellee had been advised that the account had been filed with justice of the peace G.F. Eaton for suit, he again wrote appellant's attorney as follows: "With reference to the Cherokee Mills account I want you to advise Eaton that it will be satisfactory for me to make three payments covering this as follows: fifty dollars on the 16th, fifty dollars on the 23rd and the balance thirty-nine dollars on the 30th. This will be a great help to me and I will greatly appreciate same." After the receipt of this letter no final action was taken in the justice court until the following February.
We think that by the execution of the checks for the payment of the account in full, and the repeated promises and offers to pay the account in full, in consideration of forbearance to sue and extension of the time for payment, all made more than a year after the alleged defective condition of the flour was discovered, the appellee waived any defense on the ground of breach of warranty of quality of flour, and that upon the facts appearing in this record the appellant was entitled to the peremptory instruction requested for it. Brewer v. Automobile Sales Co., 147 Miss. 603, 111 So. 578. The judgment of the court below will therefore be reversed, and judgment will be entered here for the appellant for the amount sued for.
Reversed, and judgment for the appellant.