Kanson Hat & Cap Mfg. Co. v. J. D. Blakeney & Son

*856 McGowen, J., delivered the opinion of the court. This suit was filed on an open account for one hundred thirty-four dollars and fifty cents by the Kanson Hat & Cap Manufacturing Company against J. D. Blakeney & Son before J. C. Stephens, a justice of the peace. The justice of the peace dismissing the case, an appeal was prosecuted by the plaintiff to the circuit court, where the issue was tried, submitted to the jury, resulting in a verdict for the defendant, and the plaintiff in the court below prosecutes this appeal. On the trial the plaintiff introduced J. D. Blakeney, the defendant, as a witness, and he acknowledged receipt of the goods invoiced and said he had not paid for same. His defense was that more hats and caps were shipped to him than he had ordered, and that the goods were not of the grade and quality which had, been purchased by him, and that he was entitled to a rescission of the contract. We copy these excerpts from the testimony: “Q. You have on hand now those you have not sold? A. I have all of the caps on hand, and I have all the hats but four.” *857 Oil cross-examination these questions were asked: '‘Q. "Where are the four hats? A. I let three parties have a hat apiece, and one of them came back on me about it, and I let him have another hat for his money. He brought it back in less than a week, and the other two came back in less than two weeks. All the rest of the hats and caps are there. “Q. You say the four hats you sold to your customers were returned to you? A. Yes,.sir. “Q. And you returned the money? A. Yes, sir; I returned their money.” It will be seen from this testimony that there was no •effort to account for one of the hats, nor really is it explained why Blakeney was able to offer to return all the hats except four. The court permitted the defendant to show the contents of a letter which he said he wrote to the hat company immediately after the hats were returned as above, this over the objection of the plaintiff, who objected for the reason that the letter would be the best evidence. There was no notice served on the plaintiff to produce the letter or otherwise to make competent the contents of the written letter, nor was there any testimony showing that the letter in question had been mailed postage prepaid addressed to the plaintiff. It is settled in this state that where the purchaser, after accepting goods, finds they are not of the character or quality warranted and that the warranty has been breached, he may rescind the contract by returning or offering, to return the goods to the seller, but this offer to return the goods in order to constitute a rescission of the contract must be made in a reasonable time after the discovery by the purchaser of the defects therein, ‘ ‘ and, if such offer is declined by the seller the goods must not thereafter be appropriated by the purchaser to his own use.” J. B. Colt Co. v. Mazingo (Miss.), 106 So. 533. Mr. Blakeney testified in this case that he offered to return all of the hats but four and did not have those *858 four hats on hand at the date of the trial according to his testimony. In Brown v. Norman, 4 So. 293, 65 Miss. 369, 7 Am. St. Rep. 663, the rule is well stated which is applicable to this case by Chief Justice Cooper speaking for the court : “In decisions in actions at law arising from attempted rescissions of contracts for the sale or exchange of personal property, the language of the courts is almost uniform in declaring that the defrauded party, in order to maintain his suit, must have restored or tendered to restore whatever was received by him under the contract, because of the principle that the contract must be rescinded in toto if at all, the plaintiff not being permitted to retain a benefit under an indivisible contract which he repudiates. But even in actions at law there are exceptions to the rule. If the thing received by the defrauded party be of no value (Fitz v. Bynum, 55 Cal. 459), or if by reason of the act of the fraudulent party a return be rendered impossible (Masson v. Bovet, 1 Denio [N. Y.] 69, 43 Am. Dec. [651] and notes; Hammond v. Pennock, 69 N. Y. 145), a return or tender is unnecessary. “So, also, where by natural causes or reasonable use the value of the property .is diminished, and perhaps where it is necessarily destroyed in discovering the fraud, the fraudulent party must receive it in its depreciated condition. Baker v. Lever, 67 N. Y. 304 [23 Am. Rep. 117]; Gatling v. Newell, 9 Ind. (Tanner), 574. “And, if the bona-fide buyer has expended work,"money or material in the improvement of the property before discovering the fraud, he may restore the property and recover for the work and labor, money or mate-. rial put upon it. Farris v. Ware, 60 Me. 482.” In the case before us there is no effort to apply the exceptions, neither is there an effort to show that the goods received by Blakeney were without value or were of less value, and no effort to diminish the claim by way of recoupment by the difference in value. We can see no difference in retaining the four hats, or not being able to return four hats, and retaining any *859 number. It is clear that the evidence as to the contents of the letter was incompetent, so that this record with that evidence excluded shows no defense to the action, because no competent proof is in the record showing an offer to return all the goods within a reasonable time. The offer to return a part of a shipment of goods is not sufficient to effect a rescission of the contract. See Brown v. Norman, 4 So. 293, 65 Miss. 369, 7 Am. St. Rep. 663; Ware v. Houghton, 41 Miss. 370, 93 Am. Dec. 258; Continental Jewelry Co. v. Pugh Bros., 53 So. 324, 168 Ala. 295, Ann. Cas. 1912A, 657. The court should have granted the peremptory instruction asked for by the plaintiff for the reasons-indicated above, and the judgment will be entered here in favor of the plaintiff for one hundred thirty-four dollars and fifty cents with six per cent, interest from January 4, 1924. Reversed, and judgment here for appellant.