Miles F. Bixler Co. v. J. K. Hall Lumber Co.

HART, J., (after stating the facts). It is insisted by counsel for appellant that the court erred for two reasons, in refusing to direct a verdict in its favor. First, it is insisted that the evidence does not establish fraud in the procurement of the contract and that by its terms, appellee was required to exchange articles which proved >to be unsatisfactory before he could defend a' suit for the purchase price for failure of consideration. It appears from the record that appellant was engaged in manufacturing jewelry and selling it to its customers from samples carried along by its traveling salesman. In such cases the law implies a warranty that the articles shall be merchantable and reasonably fit for the purpose for which they were intended. Main v. Bearing, 73 Ark. 470; American Standard Jewelry Co. v. Hill, 90 Ark. 78, and Iowa City Bank v. Biggadike, 131 Ark. 514. Second, it is claimed that the court should have directed a verdict for the appellant because the appellee did not return the show case. This is in application of the rule, that, before a party defrauded in a contract may rescind the contract and receive back what he paid, he must return the goods, bought, or offer to return them. It appears from the record in the present case that appellee sent back all the jewelry which he had not sold but kept the show case. According to the evidence adduced in favor of appellee he had paid appellant $31.75. This was more than the value of the show case and of the articles which he had sold. Hence he wrote appellant that he wias returning the unsold jewelry and would keep the show case for the amount which he should recover back from appellant. Appellant absolutely refused to receive the jewelry and notified appellee that it would not do so. Appellant claimed that appellee had no right to rescind the contract and notified him that it would proceed against him for the purchase price of the jewelry. Under these circumstances it would have been a vain 'and useless thing for appellee to have tendered appellant the show case. The written contract contained a list of the articles sold to appellee and the price of each article. Appellee paid appellant $31.75 before he discovered the jewelry was worthless. It was shown that this was a greater amount than the value of the goods so sold. If appellee was entitled to rescind the contract,' he would also be entitled to recover back the difference between the amount paid to appellant and the value of the articles sold upon the return or offer to return of the unsold articles. Appellee proposed to keep the show case for the sum he was entitled to receive back. Appellant absolutely refused to treat with appellee and declined to accept the goods returned. Therefore it can not now complain that a verdict should have been directed in its favor because appellee failed to return all the articles received by him under the contract. It follows that the judgment must be affirmed.