Sturgis v. Whisler

ELLISON, J. Plaintiffs alleged an attempt to rescind a written contract of sale of a stallion by offering to return the horse, and demanding the purchase price, stating that such offer and demand were refused. They thereupon brought this action for the purchase price, the petition containing an offer to return. It appears that defendant sold the' stallion for breeding purposes at a public auction to plaintiff Sturgis, and that certain representations of warranty were made by the auctioneer which afterwards, when the purchase price was paid, were reduced to writing, to the effect following: That the horse would get sixty per cent of mares with foal with proper care, treatment and certain exercise; and that if he failed to fulfill the warranty defendant would take him back and return purchase money. It is claimed that the stallion failed to meet the requirements of the contract and that he was a great part of the time unable to copulate with mares and that when he did, he failed in getting more than twenty per cent of them with foal, being forty per cent less than was agreed upon in the contract. [154] A few. days after the sale and written contract, Stnrgis sold the stallion to his co-plaintiff, Thompson, and about ten months afterwards assigned to him one-half interest in the contract with defendant. There were several questions presented at the argument; among them, whether the contract was personal with Sturgis and non-assignable by him; and whether a joint cause of action could result to Sturgis and Thompson. But we think the evidence conclusively fails to establish a proposition which, in this State, is the foundation of the right of rescission. That is, a .tender of the property back to the seller, promptly on discovering the defect which is relied upon for rescission. [Robinson v. Siple, 129 Mo. 208; Taylor v. Short, 107 Mo. 384; Estes v. Reynolds, 75 Mo. 563; Kirk & Co. v. Seeley, 63 Mo. App. 262; Walls v. Gates, 6 Mo. App. 242.] The evidence not only fails to show a tender of the stallion to defendant by plaintiffs,, or either of them, but it affirmatively shows that no tender was made. It does appear that in October, after the sale, in a conversation between plaintiff Sturgis and defendant, he told defendant that plaintiff Thompson wanted him to take the horse back. Within a day or two they met again and Sturgis again said that Thompson was dissatisfied and wanted to .turn the horse back. Defendant insisted that the horse was “all right”; that he had no connection with Thompson, and that he, Sturgis, had better settle with Thompson as he had nothing to do with him. When these conversations occurred the horse was not at hand, was not in several miles of where the parties were. There are several insurmountable objections to the foregoing constituting a tender. In the first place, as there was no actual tender, we must look to see if there was anything which excused it. We cannot find that there was. The most the evidence shows is that plaintiffs were dissatisfied with the horse and wanted .defendant to take him back, asked him to do so. But it will be ob [155] served that defendant stated that the horse had not been treated right and that may have been one of the reasons for refusing to accept the proposition to .take him back. If he had been produced and tendered, it might have been that defendant would have seen that his fears were not well grounded and have consented to his return. We do not think a mere dispute between seller and purchaser as to the failure of the commodity sold to come up to the contract of sale, is sufficient to excuse a tender. Another objection is that at the time plaintiff Sturgis asked defendant to take the horse back, he did not own him and had no control over him and it was not within his poAver to produce him, if defendant had requested him to do so. He had sold the horse several months prior to this plaintiff Thompson. There is no evidence that the latter had made Sturgis his agent to make a tender. Again, Thompson, who owned the horse and had, of course, full control over him, never asked defendant to take him back. He so stated in his testimony. And necessarily he could not have done so, since, at that time, there was no contractual relationship existing between him and defendant. It was not until several months afterward that Sturgis assigned to Thompson one-half interest in the contract between him and defendant. The only tender in the case is that made by the petition. But that will not suffice, since until there is a tender there is no cause of action founded on a rescission, and, of course, a cause of action must exist before a right accrues to sue upon it. [Althoff v. Transit Co., 204 Mo. 166; Implement Co. v. Ellis, 125 Mo. App. 692; Cahn v. Reid, 18 Mo. App. 115, 123-126; Walls v. Gates, supra.] There is yet another fatal objection to maintaining the action, and that is that plaintiff Thompson stood the horse for breeding purposes for hire for two seasons [156] after defendant refused to take him back. An offer to rescind and tender is a repudiation of right and title to the property by the purchaser. It is true the purchaser must not willfully allow the property to be destroyed if the seller refuses to accept it and it still remains in his possession. But he should not exercise dominion over it as owner. He becomes a mere bailee and cannot use it as his own. That idea runs through the cases decided in this State. It was expressly so ruled in McCulloch v. Scott, 52 Ky. 172, a case quite similar to this except that there a tender was actually made of a jack sold for breeding purposes, but on being refused by the vendor, the vendees “took the jack home after the refusal, and used him as their own, and put him to a number of mares, and did not merely take care of him, it seems to us that they waived or lost the benefit of their tender and made the jack their own, with the right only of suing for such damages as they may have sustained by the fraud if one was practiced upon them in the sale.” The same ruling was' made by the. St. Louis Court of Appeals, in Faust v. Koers, 111 Mo. App. 560; and by the Supreme Court of Wisconsin, in Glass Co. v. Friedlander, 84 Wis. 53. It is suggested that Thompson was justified in using the horse for breeding purposes in order to minimize damages. Undoubtedly instances could occur where it would be proper to protect the owner from unnecessary damage. But that is not this case, nor do the authorities cited by the plaintiffs sustain them. In the case of Faust v. Koers, supra, the vendee, who kept the horse after a tender had been refused, did not use him as his own. He occasionally took him out of the stable for exercise, merely as a means of preserving his health and strength. We have cited the case as supporting our conclusion that if the vendee uses the property as his own, he waives the tender and right to rescind. But it was argued that the contract gave Sturgis or his. assignee a certain period in which to exercise the [157] right to rescind, viz., until the 1st of March, 1908, and that before that time had expired this action was brought, and that neither he, nor Thompson, was required to offer to rescind before that time. We do not think that was intended to be the meaning of the contract. It was not meant that if it was discovered in the spring or early summer of 1907, the horse was incapacitated for copulation, that Sturgis could retain the right to rescind on that account until the following March. It is common knowledge that a stallion may be apparently perfect in connecting with mares and yet be barren, or if not barren, an uncertain foal getter. Though sometimes this can be known earlier, yet it cannot always be ascertained with certainty until the period, or near the period, of gestation- has run. So undoubtedly, for that reason, Sturgis was given full time for a complete test of the horse’s value. If he discovered he was wholly or partially worthless before that time, on account of impotency, or as an uncertain foal getter, it was his duty to exercise his right to rescind. This was his interpretation of the contract, for, as above shown, he did make his attempt to turn the horse back to defendant in the early summer of 1907. The judgment is reversed. All concur.