Sturgis v. Whisler

Decision Date28 June 1910
Citation130 S.W. 111,145 Mo. App. 148
PartiesSTURGIS et al. v. WHISLER.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Caldwell County; Francis H. Trimble, Judge.

Action by Fred H. Sturgis and another against George C. Whisler. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Chapman & Hanger, for appellant. Crosby Johnson, C. C. Johnson, and Wm. M. Fitch, for respondents.

ELLISON, J.

Plaintiffs alleged an attempt to rescind a written contract of sale of a stallion by offering to return the horse, and demanding the purchase price, stating that such offer and demand were refused. They thereupon brought this action for the purchase price; the petition containing an offer to return.

It appears that defendant sold the stallion for breeding purposes at a public auction to plaintiff Sturgis, and that certain representations of warranty were made by the auctioneer which afterwards, when the purchase price was paid, were reduced to writing, to the effect following: That the horse would get 60 per cent. of mares with foal with proper care, treatment, and certain exercise; and that if he failed to fulfill the warranty defendant would take him back and return purchase money. It is claimed that the stallion failed to meet the requirements of the contract in that he was a great part of the time unable to copulate with mares, and that when he did, he failed in getting more than 20 per cent. of them with foal, being 40 per cent. less than was agreed upon in the contract. A few days after the sale and written contract, Sturgis sold the stallion to his co-plaintiff, Thompson, and about 10 months afterwards assigned to him one-half interest in the contract with defendant.

There were several questions presented at the argument; among them, whether the contract was personal with Sturgis and nonassignable by him, and whether a joint cause of action could result to Sturgis and Thompson. But we think the evidence conclusively fails to establish a proposition which, in this state, is the foundation of the right of rescission; that is, a tender of the property back to the seller, promptly on discovering the defect which is relied upon for rescission. Robinson v. Siple, 129 Mo. 208, 31 S. W. 788; Taylor v. Short, 107 Mo. 384, 17 S. W. 970; Estes v. Reynolds, 75 Mo. 563; Kirk & Co. v. Seeley, 63 Mo. App. 262; Walls v. Gates, 6 Mo. App. 242.

The evidence not only fails to show a tender of the stallion to defendant by plaintiffs, or either of them, but it affirmatively shows that no tender was made. It does appear that in October, after the sale, in a conversation between plaintiff Sturgis and defendant, he told defendant that plaintiff Thompson wanted him to take the horse back. Within a day or two they met again and Sturgis again said that Thompson was dissatisfied and wanted to turn the horse back. Defendant insisted that the horse was "all right"; that he had no connection with Thompson, and that he, Sturgis, had better settle with Thompson as he had nothing to do with him. When these conversations occurred the horse was not at hand, was not within several miles of where the parties were.

There are several insurmountable objections to the...

To continue reading

Request your trial
27 cases
  • Kesinger v. Burtrum
    • United States
    • Missouri Court of Appeals
    • August 17, 1956
    ...Dahler v. Meistrell, supra, 24 S.W.2d loc. cit. 241-242(5); Jones v. Norman, supra, 24 S.W.2d loc. cit. 194(1); Sturgis v. Whisler, 145 Mo.App. 148, 130 S.W. 111, 113.7 Dahler v. Meistrell, supra, 24 S.W.2d loc. cit. 242; Green v. Security Mut. Life Ins. Co., 159 Mo.App. 277, 140 S.W. 325, ......
  • Jackson v. Farmers Union Livestock Com'n
    • United States
    • Kansas Court of Appeals
    • June 5, 1944
    ... ... v. Evans, 15 S.W.2d 985; Jones v ... Norman, 24 S.W.2d 191, 194; Conroys, Inc., v ... Brooks, 50 S.W.2d 708, 710; Sturgis v. Whysler, ... 145 Mo.App. 148, 155; First Methodist Church of Poplar ... Bluffs v. Berryman, 261 S.W. 73; Sellner v ... Meyer, 240 S.W ... ...
  • Jackson v. Farmers Union Livestock Commission
    • United States
    • Missouri Court of Appeals
    • June 5, 1944
    ...Co. v. Evans, 15 S.W. (2d) 985; Jones v. Norman, 24 S.W. (2d) 191, 194; Conroys, Inc., v. Brooks, 50 S.W. (2d) 708, 710; Sturgis v. Whysler, 145 Mo. App. 148, 155; First Methodist Church of Poplar Bluffs v. Berryman, 261 S.W. 73; Sellner v. Meyer, 240 S.W. 247; Ebel v. Roller, 21 S.W. (2d) ......
  • The National Cash Register Co., a Corp. v. Layton
    • United States
    • Missouri Court of Appeals
    • June 18, 1921
    ...loses his right to rescind, and cannot then later undertake to exercise it. Lawson v. Williams Co., 122 Mo.App. 484; Sturgis v. Whisler, 130 S.W. 113, 145 Mo.App. 148; Faust v. Koers, 86 S.W. 279, 111 Mo.App. Riverside Co. v. Benedict Co., 201 S.W. 584; Block v. Martin, 129 S.W. 715, 150 Mo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT