
    Peter Johnson et al., Respondents, v. Whitman Agricultural Company, Appellant.
    St. Louis Court of Appeals,
    December 22, 1885.
    1. Contracts on Sale — Rescission—Warranty—Breach—Measure on Recovery. — The vendee of a chattel may, upon a breach of the warranty thereof, rescind the contract, return the property within a reasonable time, and recoyer the purchase money paid.
    2. -Laches. The question as to what is a reasonable time is-generally a question of fact, but the time may be so short or so-long as that the court will declare it to be reasonable or unreasonable, as matter of law.
    3. -Guaranty — Tender.—One who purchases a manufactured article from a dealer, taking at the same time a collateral contract guaranty from the manufacturer, can not, by tendering the property to the manufacturer, recover from him the money paid to tne dealer for the article.
    Appeal from the St. Louis Circuit Court, George -W. Lubke, Judge.
    
      Reversed and remanded.
    
    Dyer, Lee & Ellis, for the appellant:
    Where the property in specific chattels sold has passed unconditionally to the buyer, the law gives no right to rescind the contract in the absence of an express stipulation to-that effect. Walls v. Gates, 4 Mo. App. 4; Story, Sales, sect. 421;;Sedg., Dam. (7 Ed.) 605; Benj., Sales (1 Am. Ed.) sect. 888, and cases cited; 5 Wait, Act. and Del 610. The court, at the instance of the plaintiffs, gave erroneous instructions to the jury in regard to the law applicable to the case, and particularly in regard to the measure of damages. Walls v. Gates, 4 Mo. App. 1; Sedg. Dam. (7 Ed.) 606; Courtney v. Boswell, 65 Mo. 196; Benj., Sales (1 Am. Ed.) sect. 894.
    L. E. Ottoey, for the respondents:
    There was a rescission of the contract of sale and the measure of damages is the purchase money or amount paid. Branson v. Turner, 77 Mo. 494; Walls v. Gates, 4 Mo. App. 4; Benj., Sales (2 Am. Ed.) sect. 895; 1 Id. (4 Am. Ed.) sects. 623, 635, and cases cited ; 5 Wait, Act. and Bel, 629, and cases cited. There was no unconditional sale, and even though there had been it was subject to rescission within a reasonable time. Branson r. Turner, 77 Mo. 494.
   Thompson, J.,

delivered the opinion of the court.

The ^petition contains two counts. The first states in substance that the plaintiffs purchased of the defendant, on the twenty-first of December, 1883, a hay press on the faith of a written warranty given by the defendant; that the plaintiffs paid to the defendant one hundred and eighty dollars on account of the purchase price of it; that it did not comply with the warranty; that the plaintiffs for this reason tendered it back to the defendant on the eighth day of March, 1884, wherefore the plaintiffs ask judgment for the sum of one hundred and eighty dollars so paid, with interest and costs. The second count need not be considered, because, under the rulings of the court, the defendant took a non-suit as to that. The evidence tended to show that the defendant sold the machine outright to one French, who was a dealer in agricultural implements ; that French sold the machine to the plaintiffs, and that in order to enable French to effect the sale, the defendant’s agent executed in a letter to the plaintiffs the usual written warranty which the defendant was in the habit of giving to any one who should become the purchaser of one of these machines of its make. The court put the case to the jury on the theory that although the plaintiffs had bought the machine of French, to whom the defendant had sold it outright, yet, if the defendant, in order to induce them to purchase it, gave the written guaranty in question, and the-machine did not comply with the guaranty, the plaintiffs were at liberty to tender the machine to the defendant • at any time before the institution of the suit, and recover of the defendant what they had paid to French on account of the purchase money. This was an erroneous ¡view of the law applicable to the case.

Notwithstanding the contrary intimation of Judge Bakewell in Walls v. Gates (4 Mo.. App. 1, 6), we understand the decision of the supreme court in Branson v. Turner (77 Mo. 489), to be an authority binding upon us for the rule that where there is a breach of warranty, the vendee may return the property and rescind the contract within a reasonable time. If he can do this, he can manifestly, upon such a tender, recover back the money which he has paid ©n account of the contract, which is tantamount to saying that the rule in Massachusetts, Maine, Maryland, and, perhaps, other states is the rule in this state. But according to the statement ©f this rule by the supreme court in Branson v. Turner, he must make the tender within a reasonable time. Here, the court charged the jury that he could do it at any time before the bringing of the suit, and the suit was not brought until three months after the sale, which was equivalent to holding that three months was a reasonable time as matter of law. Indeed, the petition in this case states and the facts show that the machine was not tendered back until the lapse of about two months and a “half after the purchase, and no excuse is alleged or proved for not making it sooner. It is obvious that the time during which the vendee may choose to retain the article before tendering it back, in the absence of any circumstances tending to excuse the delay, may be so short that the court may declare it to be a reasonable time, or so long that the court may declare it to be an unreasonable time, as matter of law. Thus, in Branson v. Turner, supra, it was said that two weeks was not an unreasonable time to allow the vendee with in which to return to the vendor, a yoke of oxen, and demand a rescission of the contract. We incline to think that two months and a half, in the absence of explanation or excuse, is, as matter of law, an unreasonable time; but, as the attention of the court was not directed to this point by either,party, we prefer not to be understood as deciding it. Moreover, the rule manifestly contemplates that a rescission can only be made by tendering the article back to the other contracting party, the vendor. But here, the court instruct the jury, in effect, that a rescission can be made by tendering it to a third party who has made a collateral contract of guaranty with the vendee, and that the vendee may recover of such third party the money which he paid in respect of the purchase, not to such third party, but to his immediate vendor. This is unwarranted by any principle with which we are acquainted.

The judgment will be reversed and the cause remanded. It is so ordered.

All the judges concur.

Concurring opinion of

Bombauer, J.

The instructions of the court given on behalf of the plaintiffs seem to assume that the sale of the machine was made by the defendant to the plaintiffs, and that the guaranty was that of the vendor. Not only does the guaranty offered in evidence by the plaintiffs negative this inference, but there was in other respects, to say the least, a conflict of testimony on the subject, as to whether French acted as agent of the defendant, or on his own behalf, in making the sale. There is nothing in the pleadings and evidence which would justify the court to assume as a matter of law that the guaranty was that of the vendor.

Thus, the only theory on which the instructions of the court can be supported fails.

The plaintiffs may have a remedy against the defendant upon the guaranty, if broken, but can certainly have none upon a rescission of the contract of sale, unless that contract was the defendant’s contract. That fact is denied by the answer, and has not been found by the jury.  