Horner v. Parkhurst

Robinson, J., delivered the opinion of the Court. The plaintiff's were dealers in benzine and petroleum, and the defendant was a manufacturer of fertilizers, and sometimes used benzine in the process of manufacture. This is an action to recover the contract price of a cargo of benzine sold and delivered to the defendant. According to the plaintiffs’ testimony, Mitchell, the defendant’s agent, came to the office of' the plaintiffs to buy a cargo of benzine, and said he wanted a very light benzine, ¹¹⁵ but did not say for what purpose the defendant wanted it.

The plaintiffs told him they were getting a lot of benzine under a contract with Chase & Company, of Smith’s Perry, a western district, where they produced no other kind than light benzine; that plaintiffs had agreed to sell it to one Nicolai, but supposed they could make an arrangement with him to let the defendant have a cargo. Mitchell thereupon agreed to take it. Plaintiffs did not agree or warrant it should be sixty-eight degrees gravity. Several days after its delivery Mitchell came back to plaintiffs with a sample of the benzine and requested them to test it.

This was done and it was found to be sixty-five degrees gravity. No complaint was made at that time in regard to its quality, nor was there any offer to return it till long after the sale and delivery. Precisely how long the witness does not say. So much, then, for the plaintiffs’ testimony.

Mitchell on the other hand testifies he told the plaintiffs that the defendant could not use in his business benzine of less than sixty-eight degrees gravity, and that they agreed to warrant that the benzine should be at least sixty-eight degrees, and it was upon this warranty that it was bought; that a few days after its delivery the defendant found he could not use it in the manufacture of his fertilizers, that it was in fact worthless to him, and that the witness by the direction of the defendant took a sample of it back to the plaintiffs and told them that it did not come up to the guarantee; that it was of no use to the defendant, and requested the plaintiffs to take it away. N ow upon this testimony, there are, it seems to us, but two questions, — 1st. Whether the benzine was -sold by the plaintiffs on a warranty that it should be of sixty-eight degrees gravity; — and 2ndly, if so, did the defendant offer to return it within a reasonable time after he found it was of an inferior quality? ¹¹⁶ The testimony in regard to both of these questions, .was conflicting, but in granting the plaintiffs’ third and the defendant’s first prayer, the law as applicable to these questions was fully and plainly submitted to the jury. If there was an express warranty that the benzine should be sixty-eight degrees specific gravity, and it turned out to be of an inferior quality, then, to entitle the defendant to a rescission of the contract, it was incumbent on him to return, or to offer to return it to the plaintiffs within a reasonable time after he discovered its quality, and if he failed to do so, the plaintiffs were entitled to recover the market value of the benzine.

In other words, they were entitled to recover the contract price of the benzine, less the difference, if any, between the