Mayer v. Dwinell

The opinion of the court was delivered by Redfield, Ch. J. The only serious question in this case, as it seems to us, is whether the contract of sale was rescinded. The auditor certainly did not intend to find, in terms, any such rescission. For he held the defendant liable for the full amount of the stipulated price. And as the contract was a sale, with warranty, this result of the auditor must go upon the ground that the defendant had conducted in such a manner as not to be entitled to any rebate for breach of the warranty. This is only the case where the vendee accepts the article unconditionally. But the facts reported seem to us scarcely to justify such a conclusion. The acknowledged inferiority of the article, and that the defendant at no time recognized its sufficiency, will prevent any such conclusion. But it does seem very obvious that there was nothing in the case amounting to a rescission of the contract of sale. 1. The use of five gallons of the varnish in testing its quality, when that might have been done by the use of a less quantity, will of itself bar the defendant’s right to rescind the sale, but will be no obstacle to his claim for a deduction in the price, as that may always be insisted upon, in the case of an express warranty, where the inferiority of the article is shown and nothing has been done to waive the claim on the warranty. 2. In case of warranty on the sale of goods, and no agreement to rescind and no proof of fraud, the party is not entitled to rescind; West v. Cutting, 19 Vt. 536. 3. There is in the present contract an alternative stipulation either to make good the deficiency of the ar'icle or take it back. Such an alternative is usually in the election of the party speaking. A promise in the alternative puts the alternative in the election of the promissor unless there is something to take the case out of the general rule; Patchin v. Swift, 21 Vt. 292. [304] 4. There is no distinct offer to rescind the contract and return the article in this case. The first letter says, the defendant is not willing to keep it at any price, and desires to know what to do with jt, which may be regarded as a repudiation of what remains. But this letter says, “ I am not willing to pay two dollars and twenty-five cents per gallon for what I have used, but am willing to do what is right and just under the circumstances.” And the next letter expressly claims to hold the varnish till the damage is paid. So that altogether the defendant must be regarded as standing upon his warranty in his claim. And this, as it seems to us, is all that he could claim under the contract; West v. Cutting, 19 Vt. 536; Brown v. Sayles, 27 Vt. 227. But, as we have before said, the breach of warranty will entitle the defendant to reduce the recovery to the value of the article which the auditor has reported in the present case. Judgment reversed and judgment for the plaintiff for seventy dollars and twenty-two cents, and interest from April 11856.