It seems to be generally assumed that if a buyer elects the remedy of rescission for breach of warranty he is thereby precluded from bringing an action for damages and it has been so decided.65 The Uniform Sales Act adopts this rule. As an original question, at least where a contract preceded the actual sale, it might well be argued with some force that the buyer should have a right to rescind the transfer of property without rescinding the contract, and in this way restore the property to the seller and yet hold him liable in damages for failure to keep his contract.66
62 Mflliken v. Skillings, 80 Me. 180, 36 Atl. 77, quoted and followed in Mundt 9. Simpkins, 81- Neb. 1, 115 N. W. 325, 129 Am. St. 670. See also the quotation from Pleak v. Marks, 171 la. 551, 152 N. W. 63, in note 59. Lake v. Western Silo Co., 177 la. 735, 158 N. W. 673; Stevens Tank & Tower Go. v. Berlin Mills Co., 112 Me. 336,92 AtL 180, 182; Skillings v. Collins, 224 Mass. 275, 112 N. E. 938, Ann. Cas. 1918 D. 424; McKinley v. Small, 178 Mich. 555, 146 N. W. 230. See also Sherrill v. Coad, 92 Neb. 406, 138 N. W. 567. Cf. Rood v. Priestley, 58 Wis. 255, 16 N. W. 546. In Beeves v. Yountfove, 164 la. 151,145 N. W. 502; Smith ir. Means, 170 Mo. App. 158,155 8. W. 454; Crosby v. Wells, 73 N. J. L. 790, 67 Atl. 295; Jones v. McGinn, 70 Owg. 236, 140 Fac. 994; J. I. Case Threshing Mach. Co. v. Johnson, 140 Wis. 534, 122 N. W. 1037, it was held that the clearly announced decision of the buyer not to accept a return of the goods, made it unneccessary to offer them at the place of delivery.
63 Fairbanks v. Walker, 76 Kan. 903, 92 Pac. 1129, 17 L. R. A. (N. S.) 558; P. H. & F. M. Roots Co. v. New York Foundry Co., 56 N. Y. Misc. 687, 107 N. Y. S. 742.
64 E. T. Kenney Co. v. Anderson, 26 Ky. L. Rep. 367, 81 S. W. 663. See also Weeks v. Robert A. Johnson Co., 116 Wis. 105, 92 N. W. 794.
65Abraham v. Browder, 114 Ala. 287, 290, 21 So. 818; Shaw v. Water Supply Co., 23 Col. App. 110,128 Pac. 480; Heagney v. J. I. Case Mach. Co., 4 Neb. (Unof.) 745, 96 N. W. 175; McCormick Machine Co. v. Brown, 5 Neb. (Unof.), 356, 98 N. W. 697; Mundt v. Simpkins, 81 Neb. 1,115 N. W. 325; Osborne v. Poindexter (Tex. Civ. App.), 34 S. W. 299; Houser & Haines Mfg. Co. v. McKay, 53 Wash. 337, 101 Pac. 894, 27 L. R. A. (N. S).
The right of the buyer, when sued for price, to recoup because of the diminished value of the goods, and yet bring an action later to recover consequential damages for breach of the warranty, has been upheld in England in a leading case.67 The court there said "that in the action in which recoupment had been allowed the buyer could not recover consequential damages and that, therefore, recovery should be allowed in the subsequent action on the warranty." It is true that in the former action the consequential damages could not be set up, but if the buyer elects a remedy which deprives him of a right to recover certain damages, the court cannot undo his election. In theory it seems clear that the right of recoupment must be based on the assumption that not simply the sale is rescinded but the whole contract to buy and sell. The buyer may stand on his contract, in which case he is liable for the price agreed, and may sue or counterclaim for the seller's failure to perform his contract, or he may assert in effect that the goods are not what the contract called for, and that he will substitute for his liability on that contract a quasi-contractual obligation to pay the value of what he has received. Accordingly it has been held in the United States that the buyer must elect between these two remedies,68 and the American law generally denies the possibility of maintaining an independent action to recover a balance of damages which were not recoverable when the claim was used in recoupment.69 Under the Sales Act it is clear that the buyer can have but a single remedy for breach of warranty.70
925; Blake Rutherford Farms Co. v. Holt Mfg. Co., 70 Wash. 192, 126 Pac. 418; Park v. Richardson, 81 Wis. 399, 51 N. W. 572.
66 This was so contended in the dissenting opinion in Houser & Haines Mfg. Co. v. McKay, 53 Wash. 337, 101 Pac. 894, 27 L. R. A. (N. S.), 925, and so held in Dietrich v. Badders, 27 Del. 499, 90 Atl. 47.
67 Mondel v. Steel, 8 M. & W. 858.
68 Jones v. Charles Warner Co., 2 Boyoe (Del.), 566> 83 Atl. 131; Impervious Products Co. v. Gray, 127 Md. 64,96 Atl. 1 (under Sales Act); Gilmore v. Williams, 162 Mass. 351, 38 N. E. 976; Berman v. Henry N. Clark Co., 194 Mass. 248, 80 N. E. 480.
69 McLane v. Miller, 12 Ala. 643; Penny v. Corey, 147 Ala. 617, 41 So.
In any other kind of bargain than that of a sale of goods by description, there seems even less possibility of question that rescission when rightfully exercised is an exclusive remedy and that the injured party who rescinds can claim nothing beyond restitution.