Jemison v. Woodruff & Beach

34 Ala. 143

• Court: Supreme Court of Alabama
• Decided: January 15, 1859
• Status: Published

Opinion

A. J. WALKER, C. J.

The appellant contracted with the appellees for the .manufacture of two steam-engines, to be delivered to him in the city of Tuskaloosa. They were delivered, and accepted and put in operation by the appellant, who paid a part of the purchase-money, and gave a bill of exchange for a part. It is sought by this suit to recover the unpaid purchase-money. Certainly, upon the delivery to the appellant, and acceptance by him, (if not sooner,) the sale was complete, and the title to the engines vested in the purchaser. — Chitty on Con. 336 ; Addison on Contracts, 222, 243; White v. Adkins, 18 Ala. 636.

The want of correspondence of the purchased articles with a warranty, express or implied, and the fraudulent misrepresentation of the qualities of the articles, would not prevent the title from vesting in the purchaser by virtue of the contract of purchase, the delivery, the acceptance, and the payment and security of the purchase-money. The sale of the engines being complete, the purchaser could not, without the consent of the seller, annul or rescind the contract, unless he placed, or offered to place the seller in statu quo. To the rescission of the contract, a return or offer to return the property was necessary. — Pharr v. Bachelor, 3 Ala. 237; Borum v. Garland, 9 Ala. 452; Barnett v. Stanton, 2 Ala. 181; Dill v. Camp, 22 Ala. 249; S. C., 27 Ala. 553; Addison on Contracts, 273. There was, in this case, no return, or offer to return the defective engine. There was, therefore, no rescission, and no legal right to treat the contract as rescinded or annulled.

ITuless there was a rescission of the sale, or unless the article purchased was valueless, the purchaser could not resist the payment of the entire purchase-money of the defective article. His defense, while he retains the article purchased, extends only to an abatement of the price agreed to be paid. To entitle the purchaser to avoid the pajnnent of the purchase-money entirely, upon the ground of fraud or breach of warranty, when he holds on to the property, it is not sufficient that it is valueless for the particular purpose for which it-was bought — it must be intrinsically of no value. — Davis v. Dickey, 23 Ala. 848; Burton v. Stewart, 3 Wendell, 236; see, also, the authorities cited above; Addison on Contracts, 273.

The charges asked would have allowed a defense as to the entire purchase-money of an article, the sale of which was complete and unreseinded, notwithstanding the article was of value, and was retained by the purchaser. In the refusal of those charges there was no error.

The judgment of the court below is affirmed.