Main v. Procknow

TiaiLiN, J. The objections contained in the letter of the buyers of May 1st were wholly insufficient and unavailable against a written contract of sale deliberately entered into and signed on April 27th which described goods and prices in detail. That contract was not to furnish goods suitable or salable in Oshkosh, or low priced goods or goods containing any proportion of rings “gentlemen’s sizes,” but was to furnish the goods described therein at the prices therein specified. The first shortage of goods having been made good at the re [282] quest of tbe buyers, this is also out of tbe case. Tbis leaves only three grounds of objection, viz.: tbe sale to Reimer on May 2d, the sbow-case agreement, and the last shortage. Of these tbe court below, under proper instructions, submitted to tbe jury only tbe last, and tbe jury found against tbe buyers thereon. We think there was no sufficient evidence upon which tbe jury could have found otherwise, and tbis eliminates all alleged error in tbe submission of tbis question or in tbe charge relating thereunto. Was it error to take from tbe jury all question of breach of tbe contract by sellers by their sale to Reimer and by their failure to furnish a different show case? It was not controverted that tbe plaintiffs had made tbe sale to Reimer, but they claimed they bad tbe consent of defendants so to do. Tbe court accepted the version found in defendants’ pleadings of tbe supplemental oral contract to furnish an upright show case. Tbe defendants by their pleadings were in tbe position of claiming a rescission of tbe contract of sale by reason of these breaches on tbe part of plaintiffs and at tbe same time counterclaiming against tbe plaintiffs for damages growing out of these breaches. This cannot be done. A complaint seeking to recover damages for breach of a contract or a counterclaim seeking to recover like damages is in affirmance of tbe contract. Such pleadings are inconsistent with a claim that tbe contract has been rescinded or that tbe party occupying tbis position on the record is entitled to a rescission. Tbis rule is not limited to cases involving fraud. A party to a contract may waive bis right to rescind after it has accrued by instituting an action to recover damages for tbe breach by tbe other party. Wheeler v. Dunn, 13 Colo. 428, 22 Pac. 827; Sanger v. Wood, 3 Johns. Ch. 416; Nelson v. Carrington, 4 Munf. 332, 6 Am. Dec. 519; Conrow v. Liltle, 115 N. Y. 387, 22 N. E. 346. Nor can a contract be rescinded in part and be affirmed in part. Hendricks v. Goodrich, 15 Wis. 679; Minert v. Emerick, 6 Wis. 355; Williams v. Ketchum, 21 Wis. 432. So that tbe de [283] fendants conld not affirm tlie contract by counterclaiming npon it for damages for breach of the provision thereof forbidding the sale of the goods sonth of the Eox river and the other provision relating to the show case, and at the same time' disaffirm the contract by retnrn of the goods and refusal to-pay any part of the purchase money. The defendants had,, however, the right to retain the goods and recover damages-for the breach of the contract by the plaintiffs in the foregoing particulars. They offered evidence of the breach, but offered no evidence of any damage sustained thereby. There-was nothing, therefore, to submit to the jury with reference to the alleged breaches of the contract on the part of the plaintiffs. ^ The circuit court properly submitted to the jury the only issue there was in the case for the jury. As to what constitutes at law a rescission of a contract, Second Nat. Bank v. Larson, 80 Wis. 469, 50 N. W. 469; Kinney v. Kiernan, 2 Lans. 492; State (Skillman H. M. Co.) v. Davis, 53 N. J. Law, 144, 20 Atl. 1080; Clarke v. McGetchie, 49 Iowa, 437. In short, rescission at law after delivery of goods sold consists of a return of the goods within a reasonable .time upon sufficient ground and refusal to pay the stipulated price therefor. This is one of the rights of the buyer. The other, an inconsistent right, is the right to recoup damages. The judgment must therefore be affirmed. By the Gourt. — The judgment, of the county court is affirmed. Cassoday, C. J., took no part.