Steiger v. Fronhofer

Mr. Justice Bean, after stating the facts in the foregoing terms, delivered the opinion. 1. The plaintiff moves to dismiss the appeal on the ground that the appellant’s brief was not filed within the time required by the rules of this court. Rule 14 (35 Or. 600) provides that if the appellant shall, without reasonable excuse, fail or neglect to serve and file a brief as required, the respondent may have the judgment or decree affirmed, on motion and notice, but there is no provision by which he may have the appeal dismissed becáuse of a failure to comply with the rules. The plaintiff’s motion, therefore, is not technically within the terms of the rules, and it may be doubted whether the court would be justified in treating it as a motion to affirm rather than to dismiss. However that may be, the briefs have been filed upon both sides, and, upon examination of the record, we are of opinion that the judgment should be affirmed, which renders the further consideration of the motion unnecessary. 2. The error complained of by the defendant is that the trial court did not instruct the jury that, if the sheep . delivered were not of the kind and quality called for by the contract, the defendant had a right, within a reasonable time after the discovery of their inferior or diseased condition, to return them and rescind the contract, and, if he did so, he would not be liable for the balance due on [183] the purchase price thereof. As an abstract proposition of law this may be conceded; but it has no application to this case, because rescission is not pleaded as a defense, nor v as the court requested to instruct the jury upon that phase of the case. 3. The answer admits that the sheep were delivered by the plaintiff and received by the defendant, and there is no allegation of an offer to return them. The answer alleges that, notwithstanding the agreement, the plaintiff delivered to the defendant diseased and unhealthy animals, and the defendant did not discover their condition until some time after their receipt; that, immediately upon such discovery, “he notified plaintiff that he could not use them, and that he held them subject to plaintiff’s order.” But this is not an averment that he returned the sheep, or offered to return them, or that he rescinded or desired to rescind the contract of sale. A plea of rescission and return should show that the defendant disaffirmed the contract, and returned or offered to return the property, or should set up some excuse for not doing so: 19 Ency. PI. & Pr. 47. The entire answer, as we construe it, is consistent with the intention of the defendant to retain possession of the sheep, and to recoup in damages for their alleged inferior or diseased condition. 4. The only instruction requested that has any bearing upon the question of rescission was that, if the defendant was compelled to lay out and expend money for the care of the sheep on account of their diseased condition, the verdict should be in his favor in such amount as he was compelled so to expend. But this is not law. If the sheep were not of the kind and quality called for by the contract, the defendant had a right to refuse to accept them, or, after delivery, if within a reasonable time, he could have returned them, and thereby rescinded the contract: Sun Pub. Co. v. Minnesota Type Foundry Co. 22 Or. 49 (29 [184] Pac. 6); Brigham v. Hibbard, 28 Or. 386 (43 Pac. 383). But if he retained possession of the sheep, without rescinding or offering to rescind, the plaintiff was entitled to recover the contract price, less any damages defendant may have sustained by reason of a breach of the contract by the .plaintiff, and the plaintiff’s recovery could not be defeated simply because the sheep were diseased, or because the defendant was obliged to incur some expense in their care. The court instructed the jury that if the sheep were in fact diseased, and did not fulfill the terms of the contract, the defendant had a right to set off against the purchase price the amount he was compelled to expend in the care of the sheep on account of their diseased condition ; and this, it seems to us, was all he could ask, under the pleadings and the evidence: Bump v. Cooper, 19 Or. 81 (23 Pac. 806.). Affirmed.