D. S. Morgan & Co. v. James Thetford.

• Decision Date: 28 February 1879
• Citation: D. S. Morgan & Co. v. James Thetford., 3 Ill.App. 323, 3 Bradw. 323 (Ill. App. 1879)
• Parties: D. S. MORGAN & CO.v.JAMES THETFORD.
• Court: Appellate Court of Illinois

3 Ill.App. 323

3 Bradw. 323

D. S. MORGAN & CO.

v.JAMES THETFORD.

Appellate Court of Illinois, Fourth District.

February Term, 1879.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Jackson county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

Messrs. BARR & LEMMA, for plaintiffs in error; that a party seeking to rescind a contract must place the opposite party in statu quo, cited Buchanan v. Harney, 12 Ill. 336; Smith v Doty, 24 Ill. 165.

He cannot keep the goods an unreasonable length of time: Story on Sales, § 426.

The machine not being returned, the vendor was entitled to recover its reasonable value, notwithstanding the warranty: Owens v. Sturges et al. 67 Ill. 366.

If the defect was unimportant, or could easily have been remedied, the defendant is still liable: Morgan v. Collins, 19 Ill. 126.

Mr. WILLIAM J. ALLEN, for defendant in error; that the contract might be rescinded, cited 2 Chitty on Contracts, 1089; Addison on Contracts, 504.

ALLEN, J.

This suit was brought by plaintiff on a promissory note executed by defendant to plaintiff, for a reaper and mower combined. Defendant sets up by way of bar to a recovery on the note, a warranty and failure of the conditions of the warranty. A trial was had in the Jackson Circuit Court, before a jury; verdict for defendant. A motion for a new trial was made by plaintiff, which the court overruled, and rendered a judgment against plaintiff for costs. Among other errors assigned on the record, is the refusal of the court to grant a new trial. The evidence discloses the fact that the reaper cut well, but that the rake worked badly. That after the plaintiff's agent had been notified, he re-adjusted the rake, and after cutting about half an acre the defendant seemed to be satisfied, and executed the note sued on, and paid $5 in money to pay freight on the machine. That defendant continued to use the reaper until he completed his harvest, and that afterwards he notified plaintiff's agent that the machine did not work well. The only complaint seemed to be that the rake did not properly rake off the grain. If the defendant desired to rescind the contract, it was his duty to return or offer to return the machine, within a reasonable time after he discovered its defects; in this way he might have exonerated himself from the payment of his note, having done all he could do or was required to do to place the plaintiff in statu quo. Buchanan v. Harney, 12 Ill. 336; Smith v. Doty, 24 Ill. 163; Story on Sales, § 426. Defendant having failed to return or offer to return the reaper, the contract price, or if there...