Lucchese v. Thomas Goggan & Bros.

SMITH, J. This a controversy between Lucchese, operating the National Theater, and Goggan & Bros., dealers in musical instruments. Both parties are domiciled in the city of San Antonio. In March, 1917, the parties entered into a written contract, under the provisions of which Lucchese purchased a pipe organ from the Goggans, who obligated themselves to set up the instrument in Lucchese’s theater. The written contract contained the following, among other provisions: ■ , “The builder agrees that the organ when completed shall be first class in every respect, and agrees to correct defects in material or workmanship that may be brought to his attention within 5 years from date of completion, without cost to the lessee, but this shall not include tuning or ordinary care and maintenance of the organ.” The jury found, upon sufficient evidence, that (1) the organ was not “first class in every respect;” (2) that the buyer notified the sellers “of the defects in said organ;” and (3) that the sellers did not “correct such defects.” No other issues were submitted to the jury, but the court found in written conclusions filed that theye was no acceptance of the organ by the purchaser"; that the latter got some use of the instrument; that this use had some value, but that there was no evidence to show the amount of the value of such use. Upon these findings the court rendered judgment for rescission, decreeing return of the organ to the sellers, but allowing the purchaser nothing upon his cross-action, in which he sought to recover the amount he had admittedly paid upon the purchase price. The latter relief was denied the purchaser upon the ground, as stated by the trial court, that the purchaser had failed to meet the burden placed upon hita to show the value of the use he had made of the organ so that credit therefor could be given ■ the sellers. Lucchese has appealed, contending that he was entitled to recover the entire sum he had paid towards the purchase of the organ. There is much confusion and conflict among the authorities as to the appropriate remedy vouchsafed to the purchaser of personal property in case of failure of express' warranty of quality. We perceive no useful purpose to be served by analyzing or reconciling or discussing these authorities. We think the weight of authority is such as to establish the rule that, if an article tendered or delivered is not the article contracted for, or if its quality is not as expressly warranted, the purchaser may rescind the contract of sale, and recover so much of the purchase price as he has paid, as well as *585 consequential damages. But, in order to enforce this remedy, the purchaser must not accept and use the article with knowledge of the failure or defect of quality, or, having accepted it without such knowledge, he must, upon discovery, act promptly, disaffirm the contract, tender back the article, if it be not entirely worthless, and exercise no further dominion over it, unless it be at the request of the seller to enable the latter to make the article conform to the warranty. If the purchaser obtains a valuable use of the article while its serviceability is being tested and determined, as the trial court found to be the case here, then in event of rescission by the purchaser the latter’s recovery of the purchase price paid, or of consequential damages, will be offset by the amount of the value of such use. In such case the burden is upon the purchaser to show his net damages. This cause appears to have been tried in accordance with the foregoing rules, and, as the record presents no reversible error, the judgment will be affirmed.