
    Crooks & Co. v. The Eldridge & Higgins Co.
    
      Breach of contract — Petition to¡ recover purchase price paid for goods — Must show goods of no value — Or reasonable rescission of contract, when — Claim of misrepresentation of goods by sample — Plaintiff’s petition must allege, what — -Instructions to jury — Measure of amount plaintiff may recover.
    
    1. A petition to recover the whole purchase price paid for goods, must show either that the goods were of no value, or that the plaintiff, within a reasonable time rescinded the contract and restored or offered to restore to the defendant all of the goods purchased, so that the defendant may be put in statu guo.
    
    2. A petition in which the plaintiff alleges that' he paid to the defendant a certain sum for goods, and also a certain other sum for freight and other expenses connected with the sale and delivery of the goods; and that the goods when delivered to the plaintiff were not as represented and did not correspond to the sample by which the plaintiff was induced to purchase, and also that the goods were unmerchantable, unmarketable and unfit for use, and praying for the recovery of the entire consideration paid and also the money paid in connection with the sale and delivery of the goods, does not state facts sufficient to constitute a cause of action for damages for breach of contract of sale with warranty; and an instruction to the jury that if they were satisfied, by a preponderance of the evidence, of the truth of the facts set forth in the petition, the amount of the plaintiff’s recovery should be such amount as the evidence shows the pJaintiff paid the defendant for the goods, and the expense incurred in connection therewith, not to exceed the amount claimed in the petition, less the value, if any, of the goods in the plaintiff’s possession, is erroneous.
    (Decided March 12, 1901.)
    Error to the Circuit Court of Franklin county.
    The facts are sufficiently stated in the opinion.
    
      Harrison, Olds & Henderson, for plaintiff in error.
    The plaintiff below was entitled to recover in this action only, if at all, upon the cause of action set forth in the petition. Durbin v. Fisk, 16 Ohio St., 533. Ashbrook v. Hite, 9 Ohio St., 357.
    The action is an action for money had and received, where the special circumstances which are supposed to create the liability, or to raise the promise, to pay back the money sued for, are set forth. American National Bank v. Wheelock, 45 N. Y. Sup. Ct., 205.
    The use of the common count for money had and received is not good pleading in Ohio. McNutt v. Kaufman, 26 Ohio St., 127; Middleport Mills v. Titus, 35 Ohio St., 253; Sparrow v. Hosack, 40 Ohio St., 253.
    The law of Ohio is not deficient, but on the other hand it has provided what the remedies of the seller are and what the remedies of the buyer are. The remedies of the buyer, and all of his remedies, are stated in Swan’s Treatise (10 ed.), 783-4. Stated in analytic form, but in the exact words of that author, the buyer’s remedies are as follows:
    1. (a) When the buyer of property is deceived in respect to its quality, and (b) there has been an express or implied warranty which covers the defect, he may sue on the contract of warranty.
    
    2. (a) If the seller has intentionally and actually deceived the buyer, as to the quality of the goods, either by concealment or misrepresentation; {%) it is a fraud for which the seller is liable, whether there was a warranty or not; (y) and the buyer may, if he choose, sue (1) on the contract of warranty, or (2) for such fraud; if there was both a warranty and a fraud.
    
    3. (a) When there has been a special contract as to quality and price of the goods, (b) if the goods delivered do not correspond with the contract, (1) the vendee may repudiate the goods and return them; or 
      (2) lie may give notice to the vendor to take them back, after he has given them,a reasonable trial; etc.
    4. (a) If the goods supplied do not correspond with the contract, (6) and the vendee retain them, he may, without having given any notice of their defect, set up their inferiority as a defense to an action on the contract; etc.
    The action in the case at bar does not fall within the first, second, third or fourth of these stated remedies. Dayton v. Hooglund, 39 Ohio St., 671. But the buyer cannot, while still retaining the goods, or any. part of them, bring an action to recover the contract price, or any part thereof, by reason of the total or partial failure of consideration growing out of any inferiority in the goods. The r.eason of this is, that, if he has paid for the goods he must return them to the seller and thus put him in the position he was before the contract of sale was entered into. Keener on Quasi-Contracts, p. 129; Steele v. Sanchez, 80 Iowa, 507; Coolidge v. Brigham, 1 Met., 547; Moyer v. Shoemaker, 5 Barb., 319; Lawton v. Howe, 14 Wis., 241.
    
      A party who would rescind a contract must restore to the other what has been received from him. Insurance Company v. Hull, 51 Ohio St., 270. Although there are exceptions to that rule, as stated in the last cited case, yet the case at bar does not fall within either the terms, reason or spirit of either that case or the case of Bebout v. Bodle, 38 Ohio St., 500, both of which are recognized exceptions to that general rule. This rule is also recognized as prevailing in this state by the case of Beresford v. McCune, 1 C. S. C. R., 50. Nor is the case at bar within the decision in Creighton v. Comstock, 27 Ohio St., 548.
    That money paid on a contract by a vendee cannot be recovered back by him unless there is a rescission 
      of the contract, was, in effect, held in Ashbrook v. Hite, 9 Ohio St., 357; Reed v. McGrew, 5 Ohio, 375; Taylor v. Browder, 1 Ohio St., 225; Railroad Co. v. Steinfeld, 42 Ohio St., 449.
    There was no pretense of any return of the sugar, either to the seller or Kiser & Co., as the seller’s agents. The only pretense, if it amounts to such, is of an offer to return, which, whatever it was, was made to Kiser & Co., as the resident agents of the seller. The rule, or, at least, the better rule appears to be that when the parties reside in the same locality, an actual return, and not simply an offer to return, must be made; but Avhere the buyer and seller reside in different localities and they are dealing directly with each other, an offer to return is sufficient. Kauffman Milling Co. v. Stuckey, 37 S. C., 7.
    The rule is the same even if the goods Avere bought by sample and did not correspond thereto, or, if bought with a collateral contract of Avarranty which Avas not fulfilled. Fewell v. Deane (S. Car.), 22 S. E.; 43 S. Car., 257; Hoffman v. Hampton (1895), 65 N. W., 322; 96 Iowa, 319; Bank v. Skinner (Idaho), 43 Pac. Rep., 679; Lynch v. Curfman (Minn. 1896), 68 N. W. Rep., 5.
    Such offer must be definitely an offer to return, and unconditionally such. Leslie v. Evans, Van Epps & Co., 1 Clev., 273 (1878).
    The right to return goods sold by sample, as not being equal to the sample, is a right to return all or none. Telford v. Albro, 60 Ill. App., 359.
    The vendee under a contract of sale which is executory and entire cannot repudiate it in respect to a part of the goods and at the same time enforce it in respect to the remainder. Crane Co. v. Columbus 
      
      Const. Co. (C. C. A.), 73 Fed., 984; Harzfeld v. Converse, 105 Ill., 534.
    A party cannot affirm a contract in part, and rescind it as to the residue. Wolf v. Dietzsch, 75 Ill., 205.
    He who has been induced to part with his property, by fraudulent representations or false pretenses on the part of the purchaser, may avoid the contract, and claim the return of his property. But the seller must act promptly; upon discovering the fraud, and he must return, or offer to return, whatever he has received upon it. Swan’s Treatise (10th ed.), 773; Frost v. Lowry, 15 Ohio, 200.
    Even if the pretended offer to return a part of the goods existed in point of fact, as we insist it did not, and was good as an offer to return, as we insist it was not, then we insist that the plaintiff completely waived any warranty there may have been in the sale of the sugar and all rights which it may have had by reason of such warranty. Byers v. Chapin, 28 Ohio St., 300; 10 Am. & Eng. Encyc., p. 108; Thompson v. Libby, 35 Minn., 443; Dounce v. Dow, 64 N. Y., 411; Morehouse v. Comstock, 42 Wis., 626; Locke v. Williamson, 40 Wis., 377; Prickett v. McFadden, 8 Ill. App., 197; Barton v. Kane, 17 Wis., 38; Cream City Glass Co. v. Friedlander, 84 Wis., 53; Benjamin on Sales (6th ed.), Sec. 703; Muller v. Eno, 3 Duer (N. Y.), 421; Reed v. Randall, 29 N. Y., 358; Pierson v. Crooks, 115 N. Y., 539.
    There is no averment in the petition that the plaintiff had not inspected the sugar at the time it was received and paid for, and so the testimony of Higgins tending to show that the plaintiff had not so inspected the sugar and did not know its kind or quality and that it did not correspond to the quality of sugar bought, was entirely incompetent. The plaintiff was not entitled to make proof of those matters except it had been alleged as part of the plaintiff’s cause of action. It was not so alleged. Ogden v. Beatty, 137 Pa. St., 197.
    
      T. E. Powell, for defendant in error.
    The facts stated in the petition justified a recovery by the plaintiff below from the defendant upon the following grounds:
    1. There was a special contract as to the quality of the goods sold.
    2. The goods delivered did not correspond with the sample or comply with the terms of the contract.
    3. There was an implied contract that the sugar was a merchantable and marketable article.
    4. The rule is that where goods are sold by sample, and on the faith of that sample a purchase is made, there is an implied warranty that the sample upon which the contract is made is a fair specimen of the goods.
    5. Upon the facts stated in the petition it is substantially averred that there was a warranty as to the quality of the sugar sold. No particular form of words is necessary to make a warranty, though the word warrant is generally used. Swan’s Treatise, 18th ed., p. 830; Parmlee v. Adolph, 28 Ohio St., 10; 19 Johns., 290.
    The evidence in the case fully justified the verdict. It was established beyond controversy that the sugar could not be used for any ordinary purpose, and as an article of commerce had no merit or value whatever. The sugar contained a large quantity of Prussian Blue, and whenever the sugar was used this coloring matter would instantly appear and discolor anything in which the sugar had been placed.
    
      It is expressly averred in this petition that there was no consideration for the money paid to the defendant below. That the sugar delivered for which the money was paid was worthless, unmarketable, unmerchantable, unfit for use, and did not correspond to the sample upon which it was sold. King v. Hutchins, 28 N. H., 561; Condon v. Perry, 13 Gray, 5; Leach v. Tilton, 40 N. H., 473; Fulton v. Insurance Co., 23 N. Y. S., 598.
   Davis, J.

The Eldridge & Higgins Company filed its petition in the court of common pleas, complaining, after formal averments, of Robert Crooks & Company, as follows:

“That the said defendant is indebted to the plaintiff in the sum of $1,012.56, which indebtedness was created and arose in the following manner, to-wit:
“On the 20th day of March, 1896, the'said plaintiff paid to the said, defendant the sum of $912.56 for 187 bags of granulated sugar containing 100 pounds each, and also $100.00 for freight and other expenses connected with the sale and delivery of said sugar.
‘“The said plaintiff further says, that the said 187 bags of sugar, when delivered to the plaintiff, was not as represented and did not correspond to the sample by which the plaintiff was induced to purchase the said sugar, and from which the said sale was made. The said sugar was also unmerchantable and unmarketable and unfit for use, and did not correspond to the sample exhibited to the plaintiff at the time of the purchase of the same.
“Wherefore, the plaintiff says, that there was no consideration for the payment of the said sum of $1,012.56, and the said plaintiff is entitled to recover the said sum of $1,012.56 from the said defendant.
“Wherefore, the plaintiff prays judgment against the said defendant for the said sum of $1,012.56, and its costs herein expended.”

The answer was a general denial.

The relief sought in this petition was not the recovery of damages, and the petition does not state facts sufficient to constitute a cause of action for damages. The contract between the parties is not set out, nor is the precise nature of the representations or warranty by the defendants, if any, alleged, nor the breach thereof. Professedly the action is for the recovery of the purchase money paid for 187 bags of granulated sugar, and the basis of the plaintiff’s claim is that the sugar was “unfit for use,” that is, of no value, and “that there was no consideration” for the payment of the money sought to be recovered. To sustain a recovery for the plaintiff under this petition, the plaintiff must show that the sugar was entirely worthless. If the sugar was proven to have any value whatever, the plaintiff could not recover the price paid for it without rescinding and averring and proving that it made, or offered to make, restitution of the entire lot of sugar purchased, within a reasonable time. 19 Encyclopaedia PI. and Prac., 71. There was no such allegation in this petition, and the proof was that the lot of sugar purchased was 250 bags, instead of 187 bags, and if any offer to return was ever made it was for no more than 187 bags. As there was no amendment or suggestion of amendment before or after verdict, .by far the largest part of the evidence embodied in the record was incompetent, under the issues. The trial court seems to have, in part, comprehended this, when the jury were instructed that “the plaintiff can only recover, if at all, upon proof of the special matters alleged in the petition. He cannot recover in this action upon any matters which are outside of the special matters alleged in the petition.” And yet the court, not only did permit testimony to be given upon matters outside of the special matters alleged in the petition, but, without ordering an. amendment of the petition, still further instructed the jury that if satisfied, of the truth of the facts set forth by the plaintiff in its petition by a preponderance of evidence, “the amount of its recovery should be such amount as the evidence shows plaintiff paid the defendant for said 187 bags of sugar, and the expense incurred in connection therewith, not to exceed the sum of $1,012,56, less the value, if the evidence shows there is any value, of the 187 bags of sugar, now in plaintiff’s possession.” This charge is distinctly broader than the claim set forth in the petition. Under the petition the plaintiff could only recover the price paid for the sugar* if the sugar was proved to be worth nothing; but under the charge, the plaintiff might recover the difference between the contract price for the sugar and expense incurred in connection therewith, and its actual value, not to exceed $1,012.56, that is, general damages, being the difference between the contract price and the actual value of the sugar, and special damages, being the expense incurred in connection with the sugar. This charge was not applicable to the case made in the pleadings. It is evident that the jury made up their verdict upon the measure of damages thus given to them by the court; for if they had found that the sugar was of no value at all their verdict must have been for the plaintiff for the full amount paid for the sugar, which it was not. But having found that the sugar had some value the jury must necessarily have: found for the defendant under the issues as made up and not amended. The court, however, required the jury to return a verdict for damages which were not claimed in the petition. In fact the common pleas court seems to have tried this case on the theory that it was a case for damages, although the jury were emphatically instructed that the plaintiff could recover only upon the special matters alleged in the petition. In this we think there was substantial and prejudicial error.

It may be added that this instruction did not give to the" jury the true rule of damages. If the jury should have been instructed to compute damages at all, under the pleadings in this case, the measure of damages would be the difference between the value as represented and the actual value of the sugar, together with any special damages which might be alleged and proven. The measure of damages given by the court was the difference between the contract price and the actual value of the sugar, not to exceed the entire purchase price, and freight paid, which freight was claimed in the petition, but not distinctly and properly alleged as special damages.

The judgment of the court of common pleas and the judgment of the circuit court affirming it are

Reversed.

Shauck, Spear and Burkbt, JJ., concur. Min shall, C. J., being absent, did not sit in the case.  