Park v. Richardson & Boynton Co.

W iNslow, J. Under the contract of sale of the furnace the plaintiffs undoubtedly had two remedies in case the furnace proved substantially defective, either of which they might pursue: First: They might, within a reasonable time after they had discovered the defect, notify the defendant that it was unsatisfactory, and demand its removal, in w*hich event it would become the defendant’s duty, under its contract, either to furnish a new furnace or remove the old one and refund the purchase'money; and upon failure to do either within a reasonable time the plaintiffs would have an action to recover the purchase money, as provided by the terms of the contract. This potion is in the nature of an action for rescission, though differing from an ordinary rescission because 'it is expressly provided for ‘by the contract itself, and consequently governed thereby. It is apparent, that in this case the damages would, under the terms of the contract, be the purchase money paid, with interest. [402] Second. Plaintiffs might waive their contract right to have the furnace removed, and bring an action to recover damages for breach of the warranty, in which action their damages would consist of the difference between the value of the furnace as it actually was, and its value had it conformed to the warranty, together with any other legitimate and direct loss resulting from its defects. These remedies are necessarily alternative, not concurrent. They cannot both be prosecuted at once. In this action the complaint seems to be broad enough to justify proof under either of the above theories. In fact it is impossible to say with- certainty upon which basis the pleader intended to place the action. The trial seems also to have been in a somewhat similar state of confusion. The circuit judge charged the jury, on the question of damages, as follows: “ You will remember that the purchase price of this furnace and apparatus was $242.46. If you find that the furnace was insufficient, did not comply with the terms of the warranty, and was practically valueless, in assessing damages you will find the full amount of the purchase price, with seven per cent, interest frorn the time the same was paid by the plaintiffs to the defendant. You may also assess any other sum established by the plaintiffs, which has grown out of any alleged breach of contract, provided you find that, such breach of contract existed.” This was certairily error, because it blends two distinct rules of damages, one ©f which is applicable to the action for rescission, and'the other to the action for breach of warranty. If the action be one to rescind the sale and recover back the purchase money under the provisions of the contract of sale, then the latter part of the instruction should not have been given. If, on the other hand, the action is to recover damages for breach of the warranty, the first clause of the instruction is erroneous, because the evidence is perfectly clear and conclusive that the furnace was of some value, [403] and tbe proper rule would be the difference between its actual value and its value bad it conformed with the warranty. In either view of the case, therefore, the charge is erroneous, and a new trial must be had. The verdict being a general one, the court cannot say with any certainty of what elements the damages awarded by the jury were composed. TTpon the new trial the plaintiffs should indicate or elect upon which cause of action they rely, in order that the confusion which prevailed on the first trial may not again exist. Appellant strenuously contended that if the action be for rescission and return of purchase money the jury should have been instructed that the plaintiffs must exercise their option to rescind within a reasonable time after discovery of the defects, or they will forfeit the right. "While this is undoubtedly true as a principle of law, there does not appear to have been any instruction asked or exception taken upon the trial fi’hich will raise that question in this court. Neither is the question whether the plaintiffs waived their right to insist on a "rescission of the sale by using the furnace after giving notice to defendant of its defects properly raised by any exception in the record. An instruction was asked, substantially, that if plaintiffs, after testing the furnace a reasonable time, accepted it and paid for it with knowledge of its defects, without protest, they waived their right to recover damages arising from breach of warranty. It is evident that this instruction does not reach either of the points now made. It was framed on the hypothesis that this action was brought to recover damages for a breach of warranty, and was properly refused, because there is no waiver of the right of action for damages for breach of a warranty by keeping and paying for the property warranted. By the Court.— Judgment of the circuit court reversed, and action remanded for a new trial.