Though courts which allow rescission for breach of warranty do not regard the temporary use by the buyer necessary to show the defect as such a benefit to the buyer or such an injury to the goods as to preclude the right of rescission, he cannot generally rescind if the goods are injured or destroyed.55 Unless the seller was guilty of fraud this is probably true though the destruction or injury is without the buyer's fault.56 An exception has, however, been made where the injury to the goods was caused by the very defect against which the seller warranted;57 also where the goods were worthless when they were bought;58 and where the buyer is induced by the seller to retain the property temporarily and attempt to remedy the defect, which is thereby increased.59 Moreover, when the buyer has resold a small portion of the goods before discovering the defect, he has been allowed to rescind on offering to return the remainder and the price for what was resold.60 In seeking rescission the buyer must take the position of an actor. When the buyer rejects goods because they are not what the contract requires, he is under no obligation to return them; he may simply refuse to regard them as his.61 But where the property in the goods has passed and the buyer wishes to revest the property in the seller, a return or offer to return the goods is necessary. "It is not sufficient for a buyer who has taken delivery of the goods at the vendor's place of business merely to express a willingness or make a proposal to return the goods, or simply to give notice to the seller that he holds the goods subject to his order, or to request him to come and take them back. But, if he would rescind the contract, he must return or tender back the goods to the seller at the place of delivery, unless, upon making the offer so to do, he is relieved of the obligation, as stated, by a refusal to receive them if tendered." 62 It is no exception to this rule that if the original place of delivery was the buyer's place of business, mere notice to the seller to remove the goods is sufficient.6' The buyer need not, however, actually deliver the goods to the seller unless the seller repays any portion of the price which has been paid. The buyer has a lien on the goods to secure such repayment.64
53 Mizell v. Watson, 57 Fla. Ill, 49 So. 149. See also Barrie v. Earle, 143 Mass. 1, 8 N. E. 639, 58 Am. Rep. 126; Roshkoff v. Liebennan's Millinery, Inc., 167 N. Y. S. 391, and supra, Sec. Sec. 720, 861.
54 Seesupra, Sec.863.
55 Curtis v. Hannay, 3 Esp. 82; Aultman v. Wirth. 54 111. App. 17; Rice v. Friend Bros. Co., 179 la. 355,161 N. W. 310; Iibby v. Haley, 91 Me. 331, 39 Atl. 1004; Gerli v. Mistletoe Silk Mills, 83 N. J. L. 7, 84 Atl. 1065; Mo-Knight p. Nichols, 147 Pa. St. 158, 23 Atl. 399.
56 Nutting v. Watson, 84 Neb. 464, 121 N. W. 582, 25 L. R. A. (N. S.) 823. It is well settled that the risk is on the buyer where a sale is made by the terms of which he has an option to return, until he exercises the option. See supra, Sec. 809. There is no reason to suppose that the rule would be otherwise where the right to return depended on a privilege given by the law instead of on agreement of the parties.
57 Thus in Smith v. Hale, 158 Mass. 178, 33 N. £. 493, 35 Am. St. Rep.
485, it was held that a buggy, the springs of which were warranted strong, might be returned though one of the springs had been broken while in the buyer's possession. So in Lawley & Son Corp. v. Park, 138 Fed. 31, 70 C. C. A. 399, a yacht warranted of a certain material was held returnable by the buyer though it had been seriously injured, the injury being due to the defective material of which it was constructed. So in Rosenthal v. Rambo, 165 Ind. 584, 76 N. £. 404, 3 L. R. A. (N. S.) 678, it was held that even though the contract provided as a condition of return that the horse sold should be in as sound condition when returned as when sold it might be returned though in worse condition than when bought, when such unsoundness resulted from the natural development of a disease existing at the time of the sale.
58 Buss v. Allison Glass Co., 146 Mo. App. 71,123 S. W. 949; Smith t?. Means, 170 Mo. App. 158,155 S. W. 454; First Nat. Bank v. Mineral Wells etc. St. Ry. (Tex. Civ. App.), 133 S. W. 1090.
59 Feight v. Thialer, 84 Kan. 186, 114 Pac. 249.
In Pleak v. Marks, 171 la. 651, 152 N. W. 63, 05, in speaking of the right of a buyer to rescind an executed Bale because of the death of one of the animals sold, through the fault of the seller and breach of his contract to deliver, the court said: "We can hardly think that the defendants were required to carry this putrefying carcass to the plaintiff in order to save their legal rights. The public would have some rights at this point. If the carcass had any money value, the defendants would doubtless owe a commensurate duty to protect the plaintiff to the extent of such value. It is doubtful also whether the defendants were under the necessity of returning the property to the farm of the plaintiff as a condition of rescission. The livery stable was agreed upon at the time of the purchase as the place of delivery, and the property was actually delivered there. So far, therefore, as the declaration of rescission and the return of the property thereunder are concerned, we are disposed to think that they would have been sufficient, provided, of course, that it be found that the defendants were legally entitled to rescind, and, provided further, that they had stood upon their rescission. But the defendants did not stand upon their rescission. Upon the refusal of the plaintiff to receive the property, the defendants proceeded to put the same upon the market. They were sold in due course upon the Omaha market. The defendants did not in their answer keep their tender good. Their answer contained no tender whatever. We will assume that they were not bound under all circumstances to keep the property for the purpose of keeping their tender good. The circumstances might warrant their disposal of it. Even then they would be required to dispose of it for the benefit of the plaintiff if they proposed to keep their tender good. The answer in this case pleaded only the rescission and the offer to return. It contained no suggestion of present tender either of the property or of its proceeds. The defendants, therefore, are in the position of having abandoned their tender of return, and of having fully appropriated the property to their own use."
60 Wilson v. Solberg, 145 Wis. 573, 130 N. W. 472. See also Totten o. Stevenson, 29 S. Dak. 71, 135 N. W. 715. But see Continental Jewelry Co. v. Pugh, 108 Ala. 295, 53 So. 324, Ann. Cas. 1912 A. 657.
61 Williston, Sales, Sec.Sec. 496, 497.