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SYME-EAGLE & COMPANY, Respondent, v. JOPLIN GROCER COMPANY, Appellant.

Springfield Court of Appeals, March 25, 1921.

1. SALES: Contract Held not Assignment of Another Contract so as to Relieve Seller of Liability on Warranty. Where buyer of a quantity of canned corn resold it subject to his contract of purchase for a different price and on different terms of paymen than provided in his contract, he did not thereby assign his contract to his buyer so as to be relieved of liability' for breach of warranty that the goods were fit for human consumption; the reference to his contract merely meaning that the conditions of delivery in that contract were to be incorporated in the resale contract.

2. CUSTOMS AND USAGES: Custom cannot Alter General Rule of Law. Evidence of custom is not admissible to oppose or alter a general principle or rule so as to make the rights and liabilities of parties other than they are at law, nor can it be invoked to justify an unreasonable course.

3. SALES: Seller's Direction for Judgment of Rejected Goods Waives Objections to Tender and Receipt. In an action against a dealer in canned goods for breach of warranty of quality, the dealer's

(357)

4.

Syme-Eagle & Co. v. Joplin Grocer Co.

objections as to the necessity of tender of return of goods and receipt of them are unavailing, where it appeared the dealer directed the buyer to return the goods to the manufacturer, which the buyer did.

: Buyer cannot Accept Portion of Single Shipment and Rescind as to Rest for Breach of Warranty. Where a contract for the sale of canned corn was indivisible, and the corn was shipped in one lot and not in installments, the buyer cannot accept and retain a portion of the corn and rescind the contract as to the balance because of breach of warranty of fitness for food, even though the defect in the corn could not have been ascertained until the cans were opened, after which they would be unmerchantable unless recanned at an expense greater than the original cost.

FARINGTON J., dissenting.

Appeal from the Jasper Circuit Court. Hon. Joseph D. Perkins, Judge.

REVERSED.

H. S. Miller, for Appellant.

(1) The following cases hold that a rescission must be in toto, and that a party cannot affirm a contract in part and repudiate it in part. Hunter v. Slenbach, 17 Ga. 243; Bell v. Keep, 39 Kan. 105, 17 Pac. 785; Grimes v. Sanders, 93 U. S. 51; Brill v. Rock, 23 S. W. 511; Barrie v. Earl, 143 Mass. 1, 8 N. E. 639; Merrill v. Wilson, 66 Mich. 232, 33 N. W. 716; Estes v. Reynolds, 75 Mo. 563; Burnham v. Spooner, 10 N. H. 532; Butler v. Prentiss, 36 N. Y. Sup. 301. (2) The following cases hold that the filing of suit is an affirmance of the contract and will bar rescission. Bryan Shoe Company v. Brock, 5 S. W. 1073; Wheeler v. Dunn, 13 Colo. 428, 22 Penn. 827; Stemes v. Pine, 151 Mass. 207, 23 N. E. 1006; Beder v. Raume, 95 Mich. 518, 55 N. W. 366; Goodal v. Steror, 65 Miss. 157, 3 So. 257; Bach v. Turk, 126 N. Y. 533, 36 N. E. 1019; Conroe v. Little, 115 N. Y. 387, 22 N. E. 346. (3) The case of Window Company v. Cornice Company, 181 Mo. App. 325, holds that: "To put the defrauded party to his election, it is not required that

Syme-Eagle & Co. v. Joplin Grocer Co.

the full features of the given fraud should be known to him. The right to rescind a contract must be exercised as soon as any one of the events which gives rise to the right happens or is known to the persons entitled to it." (4) We quote from the case of Evans v. Western Brass Mfg. Co., 118 Mo. 553, as follows: "The general rule undoubtedly is that parol evidence cannot be admitted to contradict, add to, or vary a written contract and it is the duty of the court to construe the writing. (Citing authorities.) But it is equally well settled that proof of usage is often admitted to interpret the meaning of the language used, for under many circumstances the parties may be supposed to contract with reference to a usage or custom as they are presumed to use words in their ordinary signification. (Citing Greenleaf on Evidence, sec. 292.) The courts,' says Starkie, 'have long allowed mercantile instruments to be expounded according to the usage and custom of merchants who have a style and language peculiar to themselves, of which usage and custom are the legitimate interpreters.'" Said same language was quoted in the case of Realty Co. v. Moyneham, 179 Mo. 643. Also see the following authorities: Plant v. Corby, 37 Mo. 314; Cameron v. Real Estate Co., 76 Mo. App. 371; Wilcox v. Baer, 85 Mo. App. 592; Baer v. Glaser, 90 Mo. App. 294; Long Bros. v. Armsby, 43 Mo. App. 263; Haworth v. Grain Co., 174 Mo. 171; Stork v. Metsker, 55 Mo. App. 37; Martin v. Hall, 26 Mo. 386; Southwestern Fruit Co. v. Horand, 44 Mo. 82; Soutier v. Kellerman, 18 Mo. 509; Cole v. Skrinka, 37 Mo. App. 427.

Geo. J. Graystone for respondent.

(1) No tender is necessary where the person to whom it would be made has shown that he would not accept it, if made. No offer to return is necessary where the subject of the sale is worthless. Smith v. Means, 170 Mo. App. 158. (2) Where a petition contains one

Syme-Eagle & Co. v. Joplin Grocer Co.

count for damages based on breach of warranty and another count based upon rescission, the court can correct the error of misjoinder by its instructions. Smith v. Means, supra. (3) By filing answer and going to trial upon the merits, the defendant waived the question of departure. 1 Ency. Pl. & Pr. 573; Mathewson v. LarsonMyers & Co., 217 S. W. 613. (4) A party is not bound absolutely by his first election. Johnson-Brinkman Commission Co. v. Railroad Co., 126 Mo. 344; Brigham v. Judy Inv. Co., 186 S. W. 15; Fitzgerrell v. Trust Co., 187 S. W. 600; Smith v. Becker, 192 Mo. App. 597, 606. (5) By filing its motion to elect with reference to the first amended petition filed by plaintiff containing one count based on breach of contract and another count based on rescission, defendant conceded that at said time plantiff had its choice of two remedies. Fitzgerrell v. Trust Co., supra. (6) In case of separable or divisible contracts, the contract may be affirmed as to part and rescided as to part. 2 Black on Rescission and Cancellation, sec. 585, p. 1368. (7) Customs and usages must be construed more strictly than acts of Parliament altering the common law, and any custom which would vary the general and well settled rules of law would be unreasonable and void. Martin v. Mill Co., 49 Mo. App. 23, 31. Evidence of custom is never admissible to suppress or alter a general principle or rule, so as to make the rights and liabilities of parties other than they are at law. S. W. Freight & Cotton Press Co. v. Standard, 44 Mo. 71, 83. Testimony of witnesses declaring what their individual opinions are and the obligations they should have deemed rested upon them had they been placed in the defendant's situation should be excluded. S. W. Freight & Cotton Press Co. v. Standard, 44 Mo. 71, 82. A custom, however well established, can never be permitted to prevail so as to make the rights and liabilities of parties other than they are at law. What constitutes a delivery is to be determined by the law regardless of the understanding of parties as to a custom. Ober et al. v. Carson Estate, 62 Mo. 209, 214.

Syme-Eagle & Co. v. Joplin Grocer Co.

See also: State ex rel. Public Service Com., 269 Mo. 63, 74-75; Bank v. Bank, 151 Mo. 320, 331-332, 74 Amer. St. R. 527. Common use among motor car manufacturers of the terms "agent" and "commission" in a sense different from their legal and generally understood meaning is a distortion which the law will not recognize. Renick v. Brooke, 190 S. W. 641, 642. (8) A party entitled to rescission is not limited to recovery of the amount paid to the seller, but if expenses are incurred as a natural consequence, the rescinding party is entitled to be made whole, which means that he may recover not only the purchase price paid but the incidental expense. 2 Black on Rescission and Cancellation, sec. 695, p. 1570; Holland v. Western Bank & Trust Co., 56 Tex. Civ. App. 324, 118 S. W. 218, 119 S. W. 694.

BRADLEY, J.-This cause is in equity to rescind a contract and to recover the amount paid thereunder for a shipment of canned corn. Plaintiff prevailed and defendant appealed.

Plaintiff, a wholesale grocer of Chicago, alleges that on July 29, 1916, defendant, a wholesale grocer of Joplin, Missouri, entered into a contract with the Forest City Canning Company of Forest City, Iowa, whereby the Canning company sold and defendant purchased 2000 cases of canned corn, each case containing 2 dozen cans. The price was 62 cents per dozen cans, f. o. b. factory at Forest City. This contract is set out in plaintiff's petition, and is as follows:

"Future Delivery Contract.

Forest City, Iowa, July 29, 1916. The Forest City Canning Company of Forest City, Iowa, hereby sells, and the Joplin Grocer Company of Joplin, Mo., hereby purchases 2000 cases (of 2 doz. each) No. 2 cans Standard Corn at 62 cent per dozen f. o. b. factory.

Terms-Sixtey days acceptance, or less 13 per cent if paid within ten days from date of invoice.

Shipment-As soon as goods can be made ready during or after the packing season of 1916,

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