Stone v. Frost

By the Court—Johnson, J. This is an appeal from an order at Special Term denying defendant’s motion for a new trial [443] on a case and exceptions. The action was to recover back money paid by the plaintiff, on a contract between him and the defendant, on the ground that the same was rescinded. The first point made by the defendant’s counsel is that the court erred in allowing the plaintiff to prove the declarations and directions given by the defendant’s agent at the time the roots were delivered upon the contract. Jones was the defendant’s agent, who made the contract for the sale and delivery of the grape roots and who delivered them on the contract. At the time of the delivery the roots were done up in bundles and covered with wrappers. The plaintiff’s agent, to whom they were delivered, was about to undo the wrappers to examine the roots, when the defendant’s agent requested plaintiff’s agent not to do so, as it was a cold, windy night; and if they were opened he would not be responsible if they turned out not to be right, and directed plaintiff’s agent what to do with them, and it should be made all right if the roots were not right. I am of the opinion that this evidence was competent as part of the transaction of delivery and acceptance; and especially so, as the defendant claimed at the trial, and now claims, that the case is within the rule in Reed v. Randall (29 N. Y., 358), and the delivery and acceptance operated as a complete and perfect performance of the executory agreement on his part. The directions in regard to the opening and examination at the time were part of the res gestee of the delivery and acceptance. It shows a good reason for the acceptance at the time, and payment of the purchase-price, without examination in respect to the condition of the roots. But even if it was error to admit the evidence, it could not have injured the defendant, as it was, in effect, stricken out of the case, and the jury were directed to disregard it as wholly immaterial, and instructed that the plaintiff could not recover unless they should find from the evidence that the roots were entirely dead and worthless at the time they were delivered by the defendant and received by the plaintiff. Taken alto [444] gether, it is plainly to be seen that the first ruling, if erroneous, could not have prejudiced the defendant’s case. (Mandeville v. Guernsey, 51 Barb., 99.) The exception to the testimony of one or two witnesses, showing that the roots were dead when examined by them, is not well taken. The objection is that they were not qualified to testify on the subject. The fact as to whether a root or other vegetable substance is dead or not is matter of such common observation and experience that it does not require an expert to testify in regard to it. The same may be said in regard to the' question whether a dead grape root has any marketable or other value. On the question what had caused the killing of the roots, the evidence was all given by persons skilled in that matter, and was properly received. This evidence was pertinent and material on the question whether the roots were in fact dead when delivered by the defendant’s agent, as there was evidence tending to show that they could not have been injured from that cause after they were delivered. If there was evidence sufficient to go to the jury on the question whether the roots were dead and entirely worthless when delivered, as there clearly was, it was a proper case to submit to a jury. The defendant’s counsel contends that unless the roots were returned or offered to be returned to the defendant the action cannot be maintained. This .depends upon the question whether the roots were of any value whatever. The jury have found by their verdict1 that the roots were dead when delivered, and of no value whatever. They must have so found, because they were expressly charged that unless they did find in that way their verdict must be for the defendant. If they could have been of no value to the defendant had they been returned, there wras no necessity of returning or offering to return before bringing the action. The idea on which the obligation to return, before action is founded, is that the defendant should be placed in as favorable condition as he was before delivery. If the thing delivered [445] can be of no value whatever to any one, the defendant is in as favorable a condition as he was when he delivered it, without any return or offer to return. It can scarcely be conceived that a dead grape root can be of any value to any one. But however this may be, the question as to whether there should have been a return, or an offer to return, was only raised on the motion for a nonsuit at the close of the plaintiff’s evidence; and there was then evidence from which the jury might well have found, if it was a question of fact, that the plaintiff had given notice to the defendant that the vines were dead and worthless, and requested him to come and take them away and pay back the money. It is true that the plaintiff’s letter, containing this notice and request, was addressed to the defendant’s agent, Jones, who made the contract and delivered the roots. But this letter, three days after it was dated and sent, was answered by the defendant in person, in which he acknowledges having received their letter from his agent, and refuses in substance to comply with their request, and insists that the roots were in good condition when delivered. I am of the opinion, however, that, as matter of law, this was a sufficient offer and notice to the defendant under all the circumstances. He certainly accepted it as such, and acted upon it, and can scarcely now be heard to say that the offer and notice were to his agent, only and not to himself. The motion for a nonsuit was therefore properly denied on that ground. The question was not raised by the charge, and does not appear again in the case. The court charged the jury that if the roots, when delivered, were dead and entirely worthless, the plaintiffs were entitled to their verdict; otherwise their verdict should be for the defendant. To this there was no exception by the defendant’s counsel, and no request to charge otherwise. The defendant’s counsel did request the court to charge that, upon the whole evidence, the plaintiff was not entitled to recover, and excepted to the refusal so to charge; but that [446] request and exception does not raise any question in particular, but goes to the entire merits of the action. There is nothing in the exception to the refusal to charge that the plaintiff could not recover that portion of the demand assigned to him by Herrick. It was in fact assigned, as appeared by the written assignment, which was undisputed; and it was quite immaterial to the defendant what the consideration was which passed between the parties thereto. The action here is not on the contract to recover damages as for a breach, but is founded upon a rescission of the contract, and is to recover back the money paid. Upon the facts found by the jury the plaintiff had the clear right to rescind; and this right he exercised within a reasonable time, under all the circumstances; and the action to recover back the money paid is well brought. The motion for a new trial was, therefore, properly denied, and the judgment and order must be affirmed.