Gray v. Consolidated Ice Machine Co.

Simmons, C. J. 1. The pleas stricken by the court will be found in the official report. Considering the original and amended pleas together, we think the court erred in striking them. While the original pleas did not of themselves make a good defense, yet taking them with the amended pleas, particularly the last, we think the allegations were sufficient to authorize the submission of the'facts set out to the jury. As a general rule, where the purchaser of property seeks to rescind the contract of purchase on the ground of a breach of ivarranty on the part of the seller, such purchaser must offer to restore the seller to his original status. Where, however, the contract of sale expressly stipulates that in the event the thing sold shall not, upon fair test, answer the requirements of the warranty, the seller shall receive back the property and repay to the purchaser the sum received on the purchase-price, it is not necessary to tender or offer to restore to the purchaser the property so purchased. If the contract provides for a test of the thing purchased, in order to ascertain whether it is suitable for the purposes for which it was purchased, and the test provided for in the contract is delayed so long that, in the ordinary use of the thing sold, its capacity to produce the result warranted has been so impaired as not to meet the warrant}'-, or if the claim of the right of rescission has been so long delayed as to raise in favor of the seller a waiver of the purchaser’s right to return the thing sold, the purchaser would forfeit not only the right of rescission under the contract, hut also his right to maintain an action for damages for the breach of the warranty. [123] 2. As above remarked, while the original pleas did not set up a good defense, we think the equitable pleas filed as amendments thereto did contain allegations sufficient to require them to he submitted to the jury. The amendments set up a new, warranty subsequent to that set out in the original pleas, and state that the seller of the ice machine received a valuable consideration for this subsequent warranty. It was contended here by counsel for defendant in error that the valuable consideration expressed in this amended plea was the same as that given in the original transaction. After a careful reading of the amended pleas, we think that this is not true. The plea alleges the subsequent contract, and that there was a valuable consideration therefor; and this consideration, we think, relates to the .subsequent contract. At any rate, the plea was good against a general demurrer. If the plaintiff in the court below had desired a more specific allegation as to what consideration was paid, or as to whether the allegation referred to the original consideration or to a new one, a special demurrer would have forced the defendant to set it out more specifically by stating whether the reference was to the original consideration, or to a new consideration paid for the new warranty. We think, therefore, that the trial judge erred in striking the amended pleas, and that he should have submitted them to the jury. Judgment reversed. All the Justices concurring.