Worcester Manufacturing Co. v. Waterbury Brass Co.

Hall, J. The defendant contends that upon the facts found it might lawfully return the machine in question to the plaintiff, and avoid liability for any part of the purchase price. This claim seems to be based upon two grounds: first, that the contract of sale was executory, and that the plaintiff failed to deliver goods answering the description of that contract ; and second, that there was a breach of a contract of warranty. When a contract of sale is not of a specific article, but is an executory agreement of sale calling for the delivery to the vendee of goods like a certain sample, or of a particular kind or description, or for the manufacture of an article in a certain manner or for a specified purpose, the vendee within a reasonable time after receiving them and before accepting them, may return them to the vendor if they do not “ conform to the sample which is the basis of the contract, or the order made upon the manufacturer or seller of the goods.” The reason of the rule is that the vendor having failed to fulfil his contract to deliver that which was ordered, the vendee cannot justly be required to accept and pay for goods which differ in kind or quality from those which he bargained for. *557 Kellogg v. Denslow, 14 Conn. 411, 421; Merriman v. Chapman, 32 id. 146; Scranton v. Mechanics’ Trading Co., 37 id. 130. This right of the vendee, under an executory agreement of sale, to return goods which do not conform to the description in the contract, when there is no agreement for such return and no fraud upon the part of the vendor, arises, not from the existence of a warranty, or a breach thereof, nor from any express or implied power of rescission, but from the right of the vendee to reject and return goods he never agreed to buy, and the title to which has not passed to him. Benj. on Sales (2d Amer. Ed.), §§ 600, 887, 888, 895; Mansfield v. Trigg, 113 Mass. 350, 354; Osborn v. Gantz, 60 N. Y. 540. But in the absence of fraud and of any special agreement, such right of return in this, case did not exist after delivery of the goods agreed upon and their acceptance by the vendee. In this case the vendee became the owner of the precise article which he contracted for, and though it failed to answer the purpose for which it was purchased, he is without remedy unless there is a warranty. Merriman v. Chapman, 32 Conn. 146 ; Scranton v. Mechanics’ Trading Co., 37 id. 130, 135; Benj. on Sales (2d Amer. Ed.), §§ 647, 657. The contract of sale in the present case was so executed by the plaintiff that the title passed upon the delivery of the machine to the defendant in accordance with the terms of the agreement. The Automatic Rotary Polishing Machine was an existing, known machine, manufactured by the plaintiff and advertised and sold by them by that name. What knowledge the defendant had obtained of it, or whether the defendant had examined it before the purchase, does not appear. The defendant asked the plaintiff at what price it would deliver at Waterbury one of this particular kind of machines, naming it, and the plaintiff in reply stated at what price it would so deliver such named machine. The finding states that after further correspondence “ the plaintiff sold and delivered to the defendant an Automatic Rotary Polishing Machine at an agreed price.” These facts show that the defendant received the article which it contracted for, and that the contract of sale was consummated so that the title vested *558 in the defendant. Upon these facts, not only could the defendant not return the machine as not complying with the terms of the contract, but it could not rescind the sale upon the ground of a breach of the contract of warranty. It is unnecessary to decide whether or not the facts show a breach of warranty. It appears that the machine delivered failed to polish brass tubing successfully; but whether this was due to some defect in or injury to this particular machine, or to the fact that this kind of a machine was not adapted to the purpose of polishing brass tubing, is not found. The claim of the defendant is, not that it was not permitted to show that the machine was worth less than the purchase price because of a defect which had been warranted against, but that upon the facts proved the plaintiff had no right of action, because the defendant was entitled to return the machine to the plaintiff, either upon the ground that it did not answer the description of a contract which was executory, or because of a right in the defendant to rescind an executed contract on account of a breach of warranty. This claim cannot be sustained upon the latter ground. Although in some States a different rule obtains (see Benj. on Sales (2d Amer. Ed.), § 888, note a), it is well-settled in this State that, in the absence of any special agreement, the vendee has not the right to rescind an executed contract of sale and return the property upon a mere breach of warranty. Kellogg v. Denslow, 14 Conn. 411; Scranton v. Mechanics’ Trading Co., 87 id. 130; Trumbull v. O’Hara, 71 id. 172, 180. Upon the facts found the court properly rendered judgment for the plaintiff for the full amount of the purchase price. There is no error. In this opinion the other judges concurred.