Cherokee Mills v. Conner

Citation145 So. 735,164 Miss. 704
Decision Date06 February 1933
Docket Number30367
CourtUnited States State Supreme Court of Mississippi
PartiesCHEROKEE MILLS v. CONNER

Division A

SALES.

Buyer of flour held to have waived defective condition thereof by giving unpaid checks covering full payment and repeated promises to pay fully.

HON. E M. LANE Judge.

APPEAL from circuit court of Covington county, HON. E. M. LANE Judge.

Suit in justice's court by Cherokee Mills against Jack Conner. Default judgment was rendered in favor of plaintiff, and on defendant's appeal to circuit court, defendant filed plea of recoupment. From the judgment in favor of defendant, plaintiff appeals. Reversed and rendered.

Reversed and judgment for the appellant.

W. U Corley, of Collins, for appellant.

Appellee as a business man and a merchant carried no other grade of flour in stock for more than a year, and he continually paid on this account, until he had paid seven hundred seventy-eight dollars and four cents, and made the last payment without murmur or protest on April 4, 1929, more than a year after he received the flour.

A buyer has the right of one of two courses. First. He must within a reasonable time, return, or offer to return the goods, and all the goods, or second, he may keep the goods, and when sued for the price, offset the difference between the sale price and the actual value, but in either case, an offer of return within a reasonable time must be made. If the return is refused by the seller, then the buyer must not further use the product, or goods.

Buyer's failure to notify seller of the defect amounting to a breach in sale contract for more than one year after purchase, held, so unreasonable as to preclude rescission of the contract.

Colt v. Mazingo, 106 So. 533; Tropical Paint & Oil Company v. Mangum and Hatcher, 125 So. 248.

Buyer taking goods shipped on written order and retaining part without agreement for return of balance constitutes acceptance of entire shipment.

Colossus v. Fair Lumber Company, 136 So. 919.

Waiver of defense that car bought as new had been used was waived by buyer, after discovering the fact, keeping and using it, and in consideration of extension of time, gave a renewal note.

Brewer v. Automobile Sales Co., 111 So. 578.

It is the duty of one intending to rescind a contract to give the other party, within a reasonable time, notice of his disaffirmance.

Continental Jewelry Company v. Pugh, 168 Ala. 295.

One cannot wait until suit is brought for the payment of the debt or enforcement of the contract to set up his grounds. This is especially true if there has been considerable elapse of time since his discovery of the facts.

Black on Rescission and Cancellation, section 541.

T. W. Cranford, of Seminary, and McIntosh & McIntosh, of Collins, for appellee.

If the buyer of goods determines to accept a shipment, although the buyer has a right to rescind, he may accept the shipment, dispose of the goods, and then sue the seller for breach of warranty, or even set off or recoup any damages sustained because of a breach of warranty.

J. B. Colt Co. v. Mazingo, 106 So. 523.

If the appellant sold the tractor under a guarantee that it was mechanically perfect, and would do certain specified work, it is bound, notwithstanding the acceptance of the tractor by the appellee, to make such guaranty good, and the appellee would have the right, in an action for the balance of the purchase money to recoup the damages suffered in consequence of the breach of warranty.

Christian & Brough Co. v. Goodman & Garrett, 96 So. 692.

There is nothing to prevent a set-off for the rotten flour, unless the appellee, Jack Conner, waived his right to set-off; we concede that all rights for rescission were waived.

Stillwell Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513; Bowers v. Music Co., 114 Miss. 25, 74 So. 744.

It appears from the evidence in this case that the trial judge properly let the jury determine the amount of damages, if any, sustained by appellees, because of the rotten condition of the flour, which was a breach of the "money back if not satisfied" warranty, which was written on the flour sacks by the company.

When the buyer of goods seeks a set-off, the rigid rule of accountability for every article is of no consequence since it is not necessary for the buyer to prove that a tender of the goods was made to the seller, and further that every article was intact or that the benefits from all sold articles was also tendered.

The right to recoup was not waived by the giving of the three checks to renew the obligations.

A principal cannot retain the benefits of an agent's act, after discovery of all the facts concerning the transaction, without the burdens thereof.

2 Corpus Juris 482, sec. 99.

OPINION

Cook, J.

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6 cases
  • Brown v. Ohman, 37171
    • United States
    • Mississippi Supreme Court
    • 31 Diciembre 1949
    ...Automobile Sales Co., 147 Miss. 603, 111 So. 578; Memphis Automatic Music Co. v. Chadwick, 164 Miss. 635, 146 So. 137; Cherokee Mills v. Conner, 164 Miss. 704, 145 So. 735; Tallahatchie Home Bank v. Aldridge, 169 Miss. 597, 153 So. 818; Gay v. First Nat. Bank, 172 Miss. 681, 160 So. When Oh......
  • Koehring Co. v. Hyde Const. Co.
    • United States
    • Mississippi Supreme Court
    • 4 Octubre 1965
    ...v. Kelly, 142 Miss. 617, 107 So. 757 (1926); Brewer v. Automobile Sales Co., 147 Miss. 603, 111 So. 578 (1927); Cherockee Mills v. Conner, 164 Miss. 704, 145 So. 735 (1933); Memphis Automatic Music Co. v. Chadwick, 164 Miss. 635, 146 So. 137 These cases state the rule that the execution of ......
  • McArthur v. Fillingame
    • United States
    • Mississippi Supreme Court
    • 6 Marzo 1939
    ... ... some other small items ... Cherokee ... Mills v. Conner, 145 So. 735, 164 Miss. 703; ... Brewer v. Automobile Sales Co., 147 Miss ... ...
  • J. B. Colt Co. v. Harris
    • United States
    • Mississippi Supreme Court
    • 11 Enero 1937
    ... ... Colossus ... Co. v. D. L. Fair Lbr. Co., 136 So. 919, 161 Miss ... 267; Cherokee Mills v. Conner, 145 So. 735, 164 ... Miss. 704; Alig v. Lackey, 75 So. 139, 114 Miss ... 392; ... ...
  • Request a trial to view additional results

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