OPINION.
FARRINGTON, J.
(after stating the facts).— Appellant’s first contention is that “the court erred in not requiring plaintiff to elect on what theory he would try the case, either as an action for damages for fraud and deceit, or for rescission of contract, or for breach of warranty.”
The petition in this case states facts which would entitle the plaintiff to recover damages for a breach of warranty, or for fraud and deceit, or for a rescission of the contract and a return of the purchase price with damages. It does state a good cause of action for the rescission of the contract based on a breach of an express warranty that the jack was a good server of mares, a good performer and a foal-getter. While it charges that the representations were false, and were [170]*170fraudulently made, so far as the breach of warranty is concerned and so far as the right to rescind the contract is concerned, it made no difference whether the statements were false, and fraudulently made. [Smithers v. Bircher, 2 Mo. App. 499; Yeater v. Hines, 24 Mo. App. 619.] If they were made and if plaintiff relied upon them in entering’ into the contract and if the jack failed to come up to the warranty, the plaintiff has a good cause of action for rescission. The petition in this case does state a good cause of action for rescission. When the defendant’s request was made that the court require an election, although the court overruled it, counsel for plaintiff stated: “I elect to stand on my petition. I have set up facts which, if true, authorize a rescission and allege that he -rescinded by tendering the property back.” The testimony introduced by the plaintiff tended to show the making of the warranty, the failure of the thing sold to come up to the warranty, the fact that the jack was utterly worthless for.any purpose, the plaintiff’s demand on the defendant- to take back the animal for the purchase price, and a refusal on the part of the defendant to do anything. The instructions given by the court limited the cause of action as one for rescission. Whatever error occurred by a failure to require plaintiff to make an election during the course of the examination of witnesses was cured by the instructions, and the error was therefore not prejudicial. Judgments are not to be reversed unless there is error materially affecting the merits of the action. Sec. 2082, and Sec. 1850, R. S. 1909; Mann v. Doerr, 222 Mo. 1, 15, 121 S. W. 86; and in the case last cited it was held that not only must the error originally affect the merits, but the same must not be waived or cured.
Appellant for-his second contention argues that plaintiff cannot sue upon one cause of action and recover on another, but this is obviously not well taken [171]*171for the reason that the canse of action on which plaintiff recovered is stated, in the petition.
Appellant contends that the trial court should not have admitted testimony to show a rescission for the reason that there was no offer in the petition nor at the trial to place the defendant in statu quo, The petition expressly alleges that a tender was made to the defendant and the facts contained in the statement herein show an offer to return the ¡jack for the purchase price, the language of the plaintiff being as follows: “I will return him this afternoon, tomorrow, or next day, whichever will suit you best. I will return that jack for value received. Q. He refused to receive him back? A. Yes, sir; said he wouldn’t do anything.” Conceding for a moment that a tender was necessary, the statement of the defendant that “he wouldn’t do anything” would have relieved the plaintiff from actually producing the jack. The law is that a tender is unnecessary where the person to whom it should be made has shown that he will refuse it if made. [Kingsland & Ferguson Co. v. St. Louis Iron Co., 29 Mo. App. l. c. 538, and cases cited; Laswell v. National Handle Co., 147 Mo. App. 497, 522, 126 S. W. 969; Deichmann v. Deichmann, 49 Mo. 107, 109.] Although the offer which the plaintiff made did not of itself amount to a tender of the jack, the defendant’s conduct and declaration that “he wouldn’t do anything” would certainly have made the actual tender an idle ceremony, which of course dispenses with a production of the thing offered. [38 Cyc. 134, 135.]
But the evidence in this case discloses a state of facts which rendered a tender wholly unnecessary, the proof being that a jack that will not cover mares is absolutely worthless for any purpose; and the un-controverted testimony is that this jack did not cover a single mare although .tried two or three times on each of twelve or thirteen mares. The cases hold that where the thing which is the subject of the sale is [172]*172worthless for any purpose, it need not be tendered and there need not be an offer to return. [Brown v. Weldon, 99 Mo. 564, 13 S. W. 342; Crenshaw v. Looter, 185 Mo. 375, 388, 84 S. W. 885; Sinnamon v. Moore, 161 Mo. App. 168, 142 S. W. 494.] For the reasons stated, the cases cited under appellant’s third assignment of error are not applicable.
, It is claimed that the plaintiff by not offering to take back the live stock which formed a part of the consideration moving from'him in the trade wholly failed in his proof of rescission. This was not a lump sale, or trade; each animal or class of animals was taken at a fixed cash valuation. The stock had been turned over to the defendant at the time of the trade, some time prior to plaintiff’s offer to return the jack. All the plaintiff could offer back was the animal he had received,' which his testimony shows he was entirely willing to do; and when he stated that he would return the jack for value received, it was an offer, and an expression of willingness and of an intention on his part to place the defendant in statu quo. While it is true that plaintiff in the course of the conversation stated that he wanted his $400 back, both had previously treated the money and live stock as $400 when the trade was made — defendant in his testimony saying that he got $400. To require the plaintiff to say, “I want to take back my $286.50,” and to likewise enumerate each animal that had been put in on the trade hy him would be unreasonable and the defendant should not be permitted to escape on so trivial an omission — especially where they had each put a cash price on each animal or class of animals given by plaintiff as part of the purchase price of the jack.
What has been said sufficiently answers appellant’s fifth assignment of error.
The sixth point is that the plaintiff continued to exercise dominion over the jack as his own property for breeding purposes and that consequently he can[173]*173not maintain this snit for a rescission. This contention is not warranted by the evidence which shows that the first time plaintiff tried the jack was on February 22d (which defendant says was a bad day to stand a jack on account of there being some snow on the ground), and plaintiff would not have been justified in pro-, nouncing the jack impotent on the first trial under such conditions. The record fails to disclose the date on which plaintiff’s offer to return the jack was made and on which the defendant said “he wouldn’t do anything.” Besides, all the testimony is that the plaintiff did not use the jack at any time from the day of the jurchase to the time of the suit; never, at any time while he was in plaintiff’s possession, did he perform a single act of service. There is no testimony that he used the jack at all after he had rescinded the contract.
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OPINION.
FARRINGTON, J.
(after stating the facts).— Appellant’s first contention is that “the court erred in not requiring plaintiff to elect on what theory he would try the case, either as an action for damages for fraud and deceit, or for rescission of contract, or for breach of warranty.”
The petition in this case states facts which would entitle the plaintiff to recover damages for a breach of warranty, or for fraud and deceit, or for a rescission of the contract and a return of the purchase price with damages. It does state a good cause of action for the rescission of the contract based on a breach of an express warranty that the jack was a good server of mares, a good performer and a foal-getter. While it charges that the representations were false, and were [170]*170fraudulently made, so far as the breach of warranty is concerned and so far as the right to rescind the contract is concerned, it made no difference whether the statements were false, and fraudulently made. [Smithers v. Bircher, 2 Mo. App. 499; Yeater v. Hines, 24 Mo. App. 619.] If they were made and if plaintiff relied upon them in entering’ into the contract and if the jack failed to come up to the warranty, the plaintiff has a good cause of action for rescission. The petition in this case does state a good cause of action for rescission. When the defendant’s request was made that the court require an election, although the court overruled it, counsel for plaintiff stated: “I elect to stand on my petition. I have set up facts which, if true, authorize a rescission and allege that he -rescinded by tendering the property back.” The testimony introduced by the plaintiff tended to show the making of the warranty, the failure of the thing sold to come up to the warranty, the fact that the jack was utterly worthless for.any purpose, the plaintiff’s demand on the defendant- to take back the animal for the purchase price, and a refusal on the part of the defendant to do anything. The instructions given by the court limited the cause of action as one for rescission. Whatever error occurred by a failure to require plaintiff to make an election during the course of the examination of witnesses was cured by the instructions, and the error was therefore not prejudicial. Judgments are not to be reversed unless there is error materially affecting the merits of the action. Sec. 2082, and Sec. 1850, R. S. 1909; Mann v. Doerr, 222 Mo. 1, 15, 121 S. W. 86; and in the case last cited it was held that not only must the error originally affect the merits, but the same must not be waived or cured.
Appellant for-his second contention argues that plaintiff cannot sue upon one cause of action and recover on another, but this is obviously not well taken [171]*171for the reason that the canse of action on which plaintiff recovered is stated, in the petition.
Appellant contends that the trial court should not have admitted testimony to show a rescission for the reason that there was no offer in the petition nor at the trial to place the defendant in statu quo, The petition expressly alleges that a tender was made to the defendant and the facts contained in the statement herein show an offer to return the ¡jack for the purchase price, the language of the plaintiff being as follows: “I will return him this afternoon, tomorrow, or next day, whichever will suit you best. I will return that jack for value received. Q. He refused to receive him back? A. Yes, sir; said he wouldn’t do anything.” Conceding for a moment that a tender was necessary, the statement of the defendant that “he wouldn’t do anything” would have relieved the plaintiff from actually producing the jack. The law is that a tender is unnecessary where the person to whom it should be made has shown that he will refuse it if made. [Kingsland & Ferguson Co. v. St. Louis Iron Co., 29 Mo. App. l. c. 538, and cases cited; Laswell v. National Handle Co., 147 Mo. App. 497, 522, 126 S. W. 969; Deichmann v. Deichmann, 49 Mo. 107, 109.] Although the offer which the plaintiff made did not of itself amount to a tender of the jack, the defendant’s conduct and declaration that “he wouldn’t do anything” would certainly have made the actual tender an idle ceremony, which of course dispenses with a production of the thing offered. [38 Cyc. 134, 135.]
But the evidence in this case discloses a state of facts which rendered a tender wholly unnecessary, the proof being that a jack that will not cover mares is absolutely worthless for any purpose; and the un-controverted testimony is that this jack did not cover a single mare although .tried two or three times on each of twelve or thirteen mares. The cases hold that where the thing which is the subject of the sale is [172]*172worthless for any purpose, it need not be tendered and there need not be an offer to return. [Brown v. Weldon, 99 Mo. 564, 13 S. W. 342; Crenshaw v. Looter, 185 Mo. 375, 388, 84 S. W. 885; Sinnamon v. Moore, 161 Mo. App. 168, 142 S. W. 494.] For the reasons stated, the cases cited under appellant’s third assignment of error are not applicable.
, It is claimed that the plaintiff by not offering to take back the live stock which formed a part of the consideration moving from'him in the trade wholly failed in his proof of rescission. This was not a lump sale, or trade; each animal or class of animals was taken at a fixed cash valuation. The stock had been turned over to the defendant at the time of the trade, some time prior to plaintiff’s offer to return the jack. All the plaintiff could offer back was the animal he had received,' which his testimony shows he was entirely willing to do; and when he stated that he would return the jack for value received, it was an offer, and an expression of willingness and of an intention on his part to place the defendant in statu quo. While it is true that plaintiff in the course of the conversation stated that he wanted his $400 back, both had previously treated the money and live stock as $400 when the trade was made — defendant in his testimony saying that he got $400. To require the plaintiff to say, “I want to take back my $286.50,” and to likewise enumerate each animal that had been put in on the trade hy him would be unreasonable and the defendant should not be permitted to escape on so trivial an omission — especially where they had each put a cash price on each animal or class of animals given by plaintiff as part of the purchase price of the jack.
What has been said sufficiently answers appellant’s fifth assignment of error.
The sixth point is that the plaintiff continued to exercise dominion over the jack as his own property for breeding purposes and that consequently he can[173]*173not maintain this snit for a rescission. This contention is not warranted by the evidence which shows that the first time plaintiff tried the jack was on February 22d (which defendant says was a bad day to stand a jack on account of there being some snow on the ground), and plaintiff would not have been justified in pro-, nouncing the jack impotent on the first trial under such conditions. The record fails to disclose the date on which plaintiff’s offer to return the jack was made and on which the defendant said “he wouldn’t do anything.” Besides, all the testimony is that the plaintiff did not use the jack at any time from the day of the jurchase to the time of the suit; never, at any time while he was in plaintiff’s possession, did he perform a single act of service. There is no testimony that he used the jack at all after he had rescinded the contract.
For a seventh assignment of error appellant argues that the instruction given for the plaintiff ignores the facts in the case, namely, that a part of the consideration given by the plaintiff on the trade was live stock. There is no testimony whatever in the record showing that this was a lump trade; it all shows that plaintiff paid the defendant $400 partly in cash and partly in enumerated live stock at an agreed cash valuation and which was treated by both parties as an equivalent of cash. Defendant, when asked the question, says he got $400, showing that he treated the live stock as so much cash on the trade.
Appellant’s complaint concerning the instruction given by the court of its own motion falls down entirely for the reason that no exception was saved. The instruction, however, properly declared the law for the guidance of the jury on the issues triable in the case.
Appellant complains of the refusal of the trial court to give its instruction numbered one. The matter contained in this instruction is found amply stated [174]*174in the instructions given by the court; hence no error intervened. In passing, however, it may be remarked that defendant’s requested instruction was improper and erroneous in that it refers the jury to the pleadings. [Sinnamon v. Moore, supra.]
In disposing of appellant’s tenth assignment of error it is sufficient to say that if the court had given the instruction which appellant insists should have been given, it would have been necessary for the plaintiff to have kept the jack in the same pit and used the same halter and stood him on the same pile of manure on which he had been accustomed to stand while in defendant’s barn in order to properly test him. The law of the case is properly declared in the instructions given by the court.
Appellant’s argument that plaintiff' failed to show any fraud or deceit is answered by saying that such showing was not necessary under the theory on which the case was tried; and defendant’s instructions 3 and 4 had no place in the record.
Defendant’s fifth instruction was properly refused; it does not correctly declare the law. If the defendant represented that the jack was a good server of mares, a good performer and a foal-getter, and plaintiff relied upon those representations and bought the jack, if the jack failed to come up to the warranty, then whether the defendant did or did not make the statements to plaintiff that the jack was young and unbroken and had only served three mares and was not halter-broken, would not relieve the defendant from liability on his warranty so as to prevent a recovery on rescission.
Appellant for his thirteenth assignment of error contends that the court erred in telling the jury that the last clause of their verdict, namely, “the jack to be returned to the defendant,” had no place in the verdict and striking it out with the jury’s consent. The gist of this action was whether the plaintiff could [175]*175recover damages on a rescission. .The jury having found that the plaintiff was entitled to damages and having assessed them, the requirement they put in their verdict was no more than the law requires where there is a rescission and the party injured recovers the full purchase price, for in such case the law vests the title to the property hack in the seller. The redundant clause in the verdict in no way affected the substantial rights of the defendant, and being mere sur-plusage, it was the right and duty of the court to call the jury’s attention to it in open court and have it stricken out with their consent.
We have considered at length the numerous assignments of-error in appellant’s brief, and have attempted in the opinion the double and somewhat difficult course of considering the assignments, seriatim, and yet keeping the report of the case within reasonable bounds. The case is quite simple and the verdict was manifestly for the right party. There are indeed few lawsuits which are vigorously contested into which there will not creep some error, but where the errors are inconsequential and do not prejudice the substantial rights of the unsuccessful litigant, it is the plain duty of the appellate court to brush aside such technical objections and hold that the trial judge led the parties to a righteous judgment. For the reasons herein appearing, the judgment is affirmed.
All concur.