The opinion of the court was delivered by
Me. Justice Pope.This was an action tried before his honor, Judge Witherspoon, and a jury, at the January, 1891, term of the Court of Common Pleas for the County of Spartanburg. The complaint was as follows: 1. That at the times hereafter mentioned the plaintiff was and is still a corporation duly chartered under and by virtue of the law of Missouri, and is located and doing business in the city of St. Louis, in said State. 2. That on or about the 24th day of October, 1888, the plaintiff sold and delivered to defendant on account twenty-five barrels of flour of the brand “Victoria,” at $5.05 per barrel, *13and twenty-five barrels of flour of the brand “Gem,” at $4.75 per barrel, amounting in the whole to the sum of two hundred and forty-five dollars, which the defendant agreed to pay therefor; that the defendant has paid the freight on said flour, to wit: forty aud 50-100 dollars, and that there is due and owing to the plaintiff from the defendant on said account the sum of two hundred and four and 50-100 dollars.
The answer was as follows: 1. He admits the allegations contained in paragraph 1 of the complaint, together with so much of paragraph 2 as alleges that the defendant bought the flour mentioned in the complaint and at the prices set out in said paragraph. 2. Defendant also admits that he paid the freight on the flour as alleged, and says he has never paid the plaintiff, as he agreed to do.
3. For a defence, the defendant says: That he purchased said flour from plaintiffs by sample through one J. C. Boyd, the agent of plaintiffs. That when said flour arrived at Spartanburg, the defendant, supposing and believing that said flour was sound and good and fit for family purposes, and believing that it would bake well and make a good and wholesome bread, had it hauled up to his store where he was merchandizing, paid the freight thereon, amounting to the sum of forty dollars and fifty cents, and offered said flour to his customers for sale. All this being done before defendant ascertained that said flour was not sound and unfit for the purposes for which it was bought. 4. That said flour did not come up to the sample by which it was sold, was not sound and good flour, and was unfit for family use, and would not make up into good, sound, and wholesome bread. 5. That as soon as defendant ascertained that said flour was not good, and that it would not bake up into good, sound, and wholesome bread, and that it did not come up to sample by which it was bought, he offered to return it, or keep it at a proper reduction, which said offers were refused by the plaintiff.
For a first counter-claim, defendant says: 1. That he adopts the allegations of paragraph 3 of this answer as the first allegation of this counter-claim, and alleges that the forty and 50-100 dollars paid by defendant as freight on said flour, was money paid for the benefit and use of the plaintiff. 2. That no part *14of said sum has been repaid by the plaintiff, but the same is due and owing by them to defendant.
For a second counter-claim, defendant alleges: 1. That soon after he received said flour, he offered it for sale to his customers, and sold and delivered some of it to those accustomed to trade with him; that said flour did not give satisfaction to his said customers, and caused them to become dissatisfied with defendant, to defendant’s loss and injury, in the sum of one hundred and fifty dollars.
For a third counter-claim, defendant says: 1. That by reason of the flour being unfit for family use and of its failing to bake into good and wholesome bread, defendant was for a time unable to supply his customers with flour, as he had hoped to do, and was forced to purchase other flour from other places, and was greatly delayed and hindered in his business, to defendant’s loss and damage two hundred dollars. Wherefore the defendant prays judgment against the plaintiff, for the sum of three hundred and ninety dollars, &c.
The plaintiff demurred1 to the last two counter-claims, because they did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the Circuit Judge. During the progress of the trial several exceptions were taken to the rulings of the Circuit Judge as to the admissibility of testimony, an oral request to charge was presented, and the jury found a verdict for $195.50 for plaintiff. After judgment, defendant appealed to this court on the following grounds:
It is respectfully submitted, his honor erred : 1. In sustaining the demurrer of the plaintiff to the 2d and 3d counter-claims of the answer of defendant.
2. In not admitting in evidence the correspondence between Dillard & Gilliland and the plaintiff.
3.. In allowing J. 0. Boyd to testify that he had sold the flour rejected by Dillard & Gilliland to parties at Woodruff, and that it gave them satisfaction—no complaints.
4. In allowing J. 0. Boyd to testify that the parties to whom he sold the flour that had been rejected by Dillard & Gilliland made no complaints.
*155. In allowing J. C. Boyd to testify that about the same time that he sold the flour to Stuckey and to Dillard & Gilliland, he sold flour of the same brand to other parties, and that it gave them satisfaction.
6. In allowing the witness, J. 0. Boyd, to testify that, during the same month, he had sold a good deal of the same brand of flour to other parties, and that it gave perfect satisfaction.
7. In charging that the defendant must not only show that some of the flour failed to come up to sample, but it is incumbent upon him to show how much of it failed to come up to the sample, in order to entitle him to relief, and he is only entitled to relief to the extent of the commodity that he shows affirmatively—that is, by the preponderance of the evidence, that has failed to come up to the standard.
8. In charging that the defendant has no right to rescind, unless, 1st. There was an agreement at the time he purchased, that if the flour did not come up to the sample, he could return it; or 2d. Where there has been fraud; or 3d. Where there has been an entire failure of consideration.
9. In charging: If the defendant has satisfied you that there has been a failure of consideration—that is, that this flour did not come up to the sample by which he purchased, then the question arises, how much of that flour failed to come up to the sample, and the defendant must show what quantity, if any, has failed to come up to the sample.
10. In charging: If the failure is only in part—that is, if only some of the brands failed—then you must estimate that amount,- and take it off the value, deduct that amount from plaintiff’s claim.
11. In charging: If the defendant has satisfied you that there has been failure of a consideration, if it is an entire failure, he is entitled to nothing.
12. In charging, in substance: That when a lot of flour is bought by sample, the burden is on the vendor to show how much of- the flour failed to come up to sample.
13. In not charging that a vendor, who sells an article for a particular purpose, cannot recover if the article fail to answer the purpose for which it was sold.
*1614. We also except to the rulings of his honor in ordering the letters from plaintiff to Dillard & Gilliland printed in the “Case.”
We will now briefly consider these exceptions in their order.
1 I. A counter-claim being a cross-action, in effect, it would seem that the defendant should be required to state the facts that enter in to make up such cross-action; and if he neglects to do so, it is in the power of the plaintiff to test its sufficiency by demurrer on that ground. In the case at bar, it seems to us that the defendant has failed in this particular in both the 2d and 3d counter-claims, and, therefore, the Circuit Judge did not err in so adjudging.
2 II. The contract set up in the complaint and admitted in the answer was that made by the plaintiffs through their agent, J. C. Boyd, with the defendant. Such being the case, what relevancy did the contract made by the plaintiffs through their same agent with Dillard & Gilliland, and which was in no wise related to that of the parties to the action at bar, bear to the contract here sued on? We cannot see. This exception is over-ruled.
3 III. The 3d, 4th, 5th, and 6th exceptions relate to the testimony of plaintiffs’ witness, J. C. Boyd, growing out of his dealings as plaintiffs’ agent with other parties in no wise connected with defendant. The Circuit Judge was clearly in error in admitting such testimony. It made no difference how fair plaintiffs were in their dealings with people other than defendant, for the issues tendered by the defendant to the plaintiffs in the case at bar were strictly confined to.the dealings between them. To such issues, therefore, each side should have been as strictly confined. No question of criminal intent was involved in these issues, but simply a failure to comply with a contract was in question. We can easily see how tastes of men may differ; what to one man is good wholesome bread is not to another. Why should the taste of one man not concerned in a controversy before the court be forced upon an unwilling party whose taste was different? Besides, who was able to say that the grade of flour iu each case was the same? These exceptions must be sustained.
*174 IV. We do not see any error in the matter embodied in the 7th exception. Here, when the plaintiff alleged his cause of action, the defendant admitted it, but sought to avoid it by matters alleged in the answer to that end. When the proofs were introduced by the defendant, who had become the actor, he showed that he had sold twelve barrels out of the fifty sold to him by the plaintiffs, and that out of the twelve sold by him to his customers, only a part of one barrel had been returned. He alleged in his answer that the plaintiffs sold by sample, and that the flour failed to come up to that standard. His proofs only related to the twelve barrels so sold and one or two other barrels that he had sampled. Under these circumstances, it became the duty of the presiding judge to charge the jury on the law as fitted to the facts in evidence. That is all that he ought to do. It prevents any confusion in the minds of the jury, and it serves to enable them to apply the law to the facts, so that their verdict may be responsive thereto. If the defendant claimed that the flour, the fifty barrels, failed to come up to the standard, the sample, it was necessary that he should establish affirmatively by a preponderance of the testimony that such was the case. How could he do this when by his testimony thirty-six of those fifty barrels of flour were in his store unopened and unsampled? The human imagination is an important factor in man’s happiness, but its use in determining facts in our courts of justice cannot be commended.
5 . V. Of the matters complained of in the 8th exception, it will, in answer, be sufficient to state that the Circuit Judge but followed the decision of our court of last resort in the case of Garter & Harden v. Walker, 2 Rich., 40. Yet we ought to say that, in commercial transactions, the buying- and selling of merchandise, the actual tender of the article purchased by the buyer to the seller could scarcely be required. It is true, a chattel, such as a horse or the like, can be actually tendered, when the parties contracting are together; but in the ramifications of trade, with the selling merchant in New York and the merchant buyer in the city of Spartanburg, for instance, with negotiations connected with the sale of merchandise conducted by correspondence, there can scarcely be a rule that would re*18quire, in order to work the rescission of a contract between the two, that the offer back of the goods, which is the tender, must be made when face to face. The rule is answered when the goods as sold are capable of being restored and are offered to be restored by the purchaser to the seller. In the case at bar, the defendant had sold nearly one-fourth of the goods. How could he make a tender so as to rescind the contract ? That was not in his power. Hence, when the judge laid down the law as he did, in the light of defendant’s testimony, he wrought no injury to the defendant here.
6 VI. There was no error in the charge, as complained of in the 9th exception. The law is correctly laid down by the Circuit Judge. VII. Nor was there any error in the charge, as complained of in the 10th and 11th exceptions. The law was properly stated by the Circuit Judge. VIII. We fail to discover in the case that the Circuit Judge charged as is represented in the 12th exception.
7 IX. As to the 13th exception, it is sufficient to say there was no proof offered by either side that the contract entered into between the plaintiffs and defendant did more than to bind the plaintiffs to furnish the defendant with fifty barrels of flour up to a certain standard—-that of sample, &c. Certainly no stipulation appears in the case whereby the plaintiffs can be charged with a duty to render to defendant fifty barrels of flour for a particular purpose. We say this much to relieve a most painstaking and able attorney from indulging in any reflection upon himself for not having presented a written request to charge, instead of presenting it orally. There was no error in the judge, and the oversight of the attorney has not injured his ease.
8 X. This last, 14th, exception it is not necessary for us to pass .upon, as the Circuit Judge is invested with the exclusive control over the settlement of a “Case” for appeal.
It is the judgment of this court that the judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit Court for the purpose of a new trial.