Russo v. Hochschild Kohn & Co.

Henderson and Markell, JJ., concur in the result, Markell, J., filing the following opinion: Judge Henderson and I concur in the result for the following reasons: 1. This is an action against a dealer,- not a manufacturer, for breach of an implied warranty, of fitness of goods sold, under Sec. 15(1) of the Uniform Sales Act [Code, 1939, Art. 83, Sec. 33(1)]. At common law such a warranty was not implied when the seller was not a manufacturer (or grower) of the thing sold. Luria Bros. & Co. v. Klaff, 139 Md. 586, 592-595 , 115 A. 849 .

Hitherto this new cause of action, created by the Sales Act, has been viewed somewhat strictly by this court. Child’s Dining Hall Co. v. Swingler, 173 Md. 490 , 197 A. 105 ; Poplar v. Hochschild, Kohn & Co., 180 Md. 389 , 24 A. 2d 783 . Under Sec. 69(1) of the Act [Code, Art. 83, Sec. 87 (1)] ; Acts of 1910, Ch. 346, the buyer, at his election, may obtain a remedy for breach of warranty in any one of four ways, viz., (a) recoupment, (6) action for damages after accepting the goods, (c) action for damages after refusing to accept, and (d) rescission. Sec. 69(2) [Sec. 87(2)] provides: “(2) When the buyer has claimed and been granted a remedy in any one of these ways, no other remedy can thereafter be granted.” ⁴⁶⁹ Section 87(1) (d) [Sec. 69(1) (d)], provides that the buyer may, at his election, “ (d) [1] Rescind the contract to sell or the sale and [2a] refuse to receive the goods; or, [2b] if the goods have already been received, return them or offer to return them to the seller and recover the price, or any part thereof, which has been paid.” [Bracketed numerals and letters inserted.

In the published Acts of 1910 and in the Code there is a semicolon, instead of the comma after “goods.” The Act as approved by the Governor does not contain the semicolon ; nor does the Act as submitted by the Commissioners on Uniform State Laws. Williston on Sales, 2d Ed., Sec. 603. Whatever the punctuation, return of the goods is the alternative for refusal to receive, not for rescission. Rescission and return, not rescission or return, is required.] Rescission of a contract, like making a contract, is a matter of intention, of both parties in case of rescission by mutual consent, of the buyer (with notice to the seller) in case of rescission for breach of warranty.

In either case intention may be inferred from conduct. Vincent v. Palmer, 170 Md. 365, 371-373 , 19 A. 2d 183 . In most instances perhaps, return of the goods and the price may conclusively show an intention to rescind. Return of the goods and the price does not, however, ipso facto constitute rescission.

Clyde Equipment Co. v. Fiorito, 9 Cir., 16 F. 2d 106, 197 ; Black on Rescission and Cancellation, 2d Ed., Secs. 534, 561, 569, 574; Teter v. Shultz, 110 Ind. App. 541, 548-550 , 39 N. E. 2d 802 ; Schutz v. Foster, 191 Minn. 116 , 253 N. W. 372 , 106 A. L. R. 701, and note, 106 A. L. R. 703-706. When the goods are worthless, return of them in case of rescission is not necessary, even under the Sales Act. Williston on Sales, 2d Ed., Sec. 610; Wright v. Bristol Patent Leather Co., 257 Pa. 552, 557 , 101 A. 844 ; John Service, Inc. v. Goodnow-Pearson Co., 242 Mass. 594, 597, 598 , 136 N. E. 623 , 29 A. L. R. 1513.

Conversely, return of worthless goods does not necessarily evidence intention to rescind. ⁴⁷⁰ In the instant case the pleadings show no intention to rescind; quite the contrary.' The plaintiff (appellant) sues for $1,500 for personal injuries from the use of infected hair pads. At the request of the defendant (appellee) she returned the unused hair pads and “accepted credit” for the price, $1.10. In short, the goods were worthless, the price negligible. It was the defendant’s duty and interest to get back the infected hair pads to prevent injury to anybody else.

In the circumstances the request for return, and the return of the hair pads do not evidence an intention to rescind the contract of sale and thereby waive the plaintiff’s right to damages. The plaintiff expressly denies any such intent; to infer such an intent on the defendant’s part would be to ascribe to the defendant an intent to trap and cheat the plaintiff. In Henry v. Rudge & Guenzel Co., 118 Neb. 260 , 224 N. W. 294 , relied on by the defendant, the buyer and the seller in close bargaining indicated that they did not regard the goods (a pair of shoes) as worthless or the price as negligible. Consequently, a remedy by rescission has not been “claimed or granted” and is not a bar to this action for damages.

On this ground, the judgment should be reversed. It is, therefore, unnecessary