Campbell Printing Press & Manufacturing Co. v. Marsh

Chiee Justice Hast delivered the opinion of the court. The foregoing opinion of the learned judge who presided at the trial in the district court fully and fairly disposes of all the questions of law or fact in this case, and we do not deem it necessary to do more than briefly answer the objections to the opinion urged in this court, and call attention to a few leading cases in support of the legal conclusions reached by the trial court. It is said that the right of rescission never existed and that consequently the discussion about the waiver of the right is out of place. The contract of sale and chattel mortgage were executed cotemporaneously and should be construed to [31] gether. The contract for the press and folder was entire and indivisible ; the price fixed is a gross sum for the two articles, the press to be delivered immediately and the folder within two weeks. The evidence tends to show that the failure to obtain the folder rendered the press practically valueless for many of the purposes for which it was purchased, and leaves little doubt that had such failure been anticipated, appellees would not have made the contract of purchase. The folder was not delivered within the time specified and appellees were practically forced to suspend, business on account of this breach of the contract. They had a right to assume from the communications received from appellant that it was unable to comply with the contract with reference to the folder. Under these circumstances appellees had an undoubted right to rescind the contract. Norrington v. Wright et al., 115 U. S. 188; Husted v. Craig, 36 N. Y. 221; Norris v. Harris, 15 Cal. 226; Robinson v. Brooks, 40 Fed. Rep. 525; Bell v. Hoffman, 92 N. C. 273. It is urged that as the press had been put in use by appellees the appellant could not be placed in statu quo and hence the former could not rescind. It is undoubtedly true that where one of the parties to a contract seeks to rescind, he must place the other in statu quo. He will not be allowed to repudiate a contract and retain a benefit derived therefrom. In this case, however, it was in contemplation of the parties that the press should be used pending the delivery of the folder. The evidence shows that, in fact, it was used only to a very limited extent; that appellees had little or no benefit from such use, and that the press was returned in as good condition as when received. It is true that the witnesses testified that it would not sell so well as an unused press, but the rule requiring the seller to be placed in statu quo has never, we think, been extended so far as to entitle the party in fault to be saved from all loss. In Norrington v. Wright, supra, the contract was for the shipment of five thousand tons of iron rails from an European port or ports, at the rate of one thousand tons per month, [32] beginning with February, 1880. The purchasers in this case were allowed to rescind the contract on account of a failure to ship one thousand tons in each of the months of February and March, although the purchasers had received four hundred tons-of the February shipment and eight hundred and eighty-five tons of the March shipment, before notice that the balance for these months had not been shipped. The fact that the vendors had incurred great expense in the part performance of the contract was considered no objection to a rescission on account of their failure to fully perform. In Husted v. Craig, supra, under the contract plaintiff was to furnish oilcloths and carpets, and to carpet defendant’s house. He did a part of it in an unskillful and unworkmanlike manner, and the defendant was allowed to avoid the contract and return the goods, although the carpets had been' cut to fit the rooms and put down. The contract in Robinson v. Brooks, supra, was for the delivery of a threshing machine “ at once or as soon as possible.” The machine at the time was about twenty-eight miles from its destination, and the court held that a delay of two weeks in the shipment of the machine, was an unreasonable delay, and that defendants were entitled to rescind the contract by reason thereof. In this case the machine was shipped and upon the failure of the defendant to receive the same it was sold by the railroad company for freight charges; nevertheless the defendant was allowed to rescind' the contract. The district court properly held that the defendant by answering and filing a counterclaim thereby waived all defects in the service of summons. The N. Y. & Brooklyn M. Co. v. Gill, 7 Colo. 100; Colorado Cent. R. Co. v. Caldwell, 11 Colo. 545. The judgment is affirmed. Affirmed.