Summary
noting that "a breach which goes to only a part of the consideration, which is incidental and subordinate to the main purpose of the contract," is not material
Summary of this case from Roumann Consulting Inc. v. T.V. John & Son, Inc.Opinion
January 11, 1967. —
January 31, 1967.
APPEAL from a judgment of the county court of Outagamie county: RAYMOND P. DOHR, Judge. Reversed.
For the appellant there was a brief by Herrling, Lathrop Myse and Bollenbeck, Patterson, Froehlich, Jensen Wylie, all of Appleton, and oral argument by Dennis W. Herrling.
For the respondents the cause was submitted on the brief of William J. Schuh of Appleton.
Action to recover the contract price due under a conditional sales contract from the defendants-respondents James and Mrs. Lee, who in their answer allege a breach of the contract by plaintiff's assignor, Kirby Company, and counterclaim for the return of a 1963 Atlas vacuum sweeper or its value in cash. Plaintiff also filed a garnishment action.
After trial to the court judgment was entered for the defendants on March 2, 1965, dismissing plaintiff's complaint in its principal and garnishment action and adjudging that defendants recover a 1963 Atlas vacuum cleaner or the sum of $200. Plaintiff Appleton State Bank appealed from the judgment.
The defendants Lee on February 6, 1964, entered into a conditional sales contract with the Kirby Company of Appleton wherein they agreed, in writing, to purchase a Kirby vacuum cleaner and attachments for $269, plus the cost of insurance, financing and sales tax. As an inducement for this purchase Kirby included a New Home sewing machine for $200 and took in trade defendants' used vacuum cleaner for $200.
At the time of the sale the Kirby salesman left with the defendants a new Kirby vacuum cleaner with attachments and a Modernaire sewing machine and took defendants' "trade-in" vacuum cleaner.
On February 6, 1964, the conditional sales contract calling for the payment of $335.28 in twenty-four monthly payments of $13.97 each was assigned by the Kirby Company to the plaintiff Appleton State Bank.
On February 7, 1964, defendants discovered that the sewing machine left by the Kirby salesman was not a New Home but rather a Modernaire. When this fact was brought to the attention of the Kirby Company, it offered immediately to exchange the Modernaire for a New Home model, but the defendants refused to accept the New Home model and requested that the contract be cancelled.
On Saturday, February 8, 1964, the Kirby Company was again asked to cancel the contract and again refused. Defendants Lee also again refused to accept a New Home sewing machine.
On Monday, February 10, 1964, defendants Lee contacted the plaintiff bank requesting that the contract be cancelled. This request was refused.
Since February 7, 1964, defendants have repeatedly tried to return the merchandise to Kirby Company, but the tender was never accepted.
The trial court found that the contract was not fully performed on the part of the seller inasmuch as it did not furnish the sewing machine specified in the contract at the time of its execution. The court concluded that such breach rendered the contract unenforceable by either the seller or its assignee Appleton State Bank.
The defendants argue that the failure of Kirby Company to deliver the brand-name sewing machine as specified in the conditional sales contract was a material breach of the contract.
The question here is whether there has been a substantial breach of the agreement so as to warrant rescission by the defendants.
In order to establish a breach sufficient to constitute repudiation of the entire agreement the nonperformance or breach must be substantial.
". . . a breach which goes to only a part of the consideration, which is incidental and subordinate to the main purpose of the contract, and which may be compensated in damages, does not warrant a rescission of the contract; . . ."
17 Am. Jur.2d, Contracts, p. 983, sec. 504.
Before a party not in default may be entitled to the relief of rescission there must be so serious a breach of the contract by the other party as to destroy the essential objects of the contract.
Hoffmann v. Danielson (1947), 251 Wis. 34, 27 N.W.2d 759, 761.
Here the contract was entered into on a Thursday. The defendants sought to cancel on Friday and on Saturday. The defendants were offered a sewing machine of the exact kind called for in the conditional sales contract but refused to accept it. The testimony indicates that the Modernaire sewing machine was left with the Lees through an innocent error. The salesman removed the machine from the container in the presence of the defendants. There is no contention of deceit. There was also uncontradicted testimony that the Modernaire and New Home sewing machines are exactly the same thing.
Whether the alleged breach would justify rescission would depend upon whether time were of the essence of the contract.
Time is not of the essence of a contract unless it is clear that the parties intended to make it so.
Hoffmann v. Danielson, supra.
In addition to the time of performance, in order to substantiate defendants' claim of breach, it was necessary to prove they received something of less value than called for in the contract. This fact was not established, and the trial court did not ascertain the value of either sewing machine.
This court would have no difficulty in affirming the trial court's judgment if defendants had established that the value of the machine delivered was not equal to that of the New Home machine or if the defendants had established that either machine was not of its purported value.
The trial court's reasoning that since the Lees bought the vacuum cleaner mainly due to their need of a sewing machine and since a New Home sewing machine, serial number 171, had been bargained for and not received there was a substantial breach of the contract by the Kirby Company is not supported by the evidence.
The testimony shows that Mr. Lee knew nothing about a New Home sewing machine and so far as he was concerned there was really nothing special about a New Home machine except its purported value of $200. The purported value of $200 was never disproven by the defendants.
We conclude that the real bargain in addition to the vacuum cleaner was for a $200 sewing machine, that the testimony reveals that the sewing machine delivered is of the same value as the New Home machine described in the sales contract and that the defendants never established that the sewing machine delivered was of a value less than $200.
We further conclude that the trial court was' not correct in finding a substantial breach of the contract when time was not of the essence and the Kirby Company immediately attempted to rectify the error of delivery.
The plaintiff contends that the trial court erred in failing to provide for the return of the Kirby vacuum cleaner and attachments in its judgment of rescission. We deem this contention meritorious but moot in view of this court's ruling to reverse the judgment of the trial court.
By the Court. — Judgment reversed, and remanded with directions to enter judgment for the plaintiff.