Adam Kroehle's Sons Co. v. Leather Co. , 240 Mich. 524 ( 1927 )

Whether or not the hides furnished complied with the contract and warranty is in dispute. But the question is unimportant, since plaintiff accepted the rejected pieces and is demanding payment only for those retained and used by the defendant. Assuming, however, they were not all of the quality contracted, what, then, were the rights of the buyer? It had the right to reject the whole. It also had the right to reject those not in accord with the contract and accept those that were. These rights are given it by statute. See uniform sales act (3 Comp. Laws 1915, § 11875, subd. 3).

Defendant elected to accept those in accord with the contract and reject the balance. Its right to do so was recognized by plaintiff and the returned hides credited to its account. But now defendant claims the additional right, without giving plaintiff opportunity of making proper substitution of the goods returned, to purchase in the market and charge plaintiff with the difference in cost. This it may not do. The return of the hides, notice to send no more stock until advised, failure to advise further shipments or give plaintiff opportunity to perform before going into the market and purchasing elsewhere, amounted to a repudiation or rescission by the defendant of the contract in part, and in such an instance we have held that:

"A party cannot rescind a contract in part and hold it valid or insist upon it in part, or treat it as valid for one purpose and void for another; he cannot rescind and then insist on damages for not performing, for when a contract is rescinded, an action will not lie for the breach of it." HubbardstonLumber Co. v. Bates, 31 Mich. 158.

See, also, Walter-Wallingford Coal Co. v. Himes Coal Co.,223 Mich. 576, and cases.

Clearly defendant waived any right it may have had to claim damages, and is now estopped from so doing. We are of the opinion that plaintiff was entitled to a judgment for any balance due for goods retained by defendant, and that the trial court was correct in its conclusion that "under those circumstances, of course, he (meaning defendant) cannot come into a court of law and claim damages for the breach of the contract that he himself has turned down and repudiated."

Judgment affirmed, with costs to plaintiff.

SHARPE, C.J., and BIRD, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred.