Prickett v. Mcfadden
| Decision Date | 28 February 1881 |
| Citation | 8 Ill.App. 197,8 Bradw. 197 |
| Parties | OLIVER T. PRICKETTv.DAVID P. MCFADDEN. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Jackson county; the Hon. O. A. HARKER, Judge, presiding. Opinion filed April 7, 1881.
Messrs. BARR & LEMMA, and Mr. ANDREW D. DUFF, for plaintiff in error; that where a purchaser has paid the price, in case of a false warranty, he may bring his action on the breach without returning the goods, or he may return the goods and sue for the price, cited Shields v. Pettee, 4 Com. 122; 1 Parsons on Contracts, 591; Oxendale v. Wetherell, 9 B. & C. 386; Reed v. Rann, 10 B. & C. 441; Bowker v. Hoyt, 18 Pick. 555.
If the vendor refuses to receive the goods when tendered, the purchaser may sell them at their market value, but must account to the vendor for their proceeds: Chesterman v. Lamb, 2 A & E. 129; McKinzie v. Hancock, Ry. & M. 436; McLean v. Dunn, 4 Bing. 722; Woodward v. Thacher, 21 Vt. 580; 1 Parsons on Contracts, 593.
Unless there is fraud or the contract is wholly unexecuted, a breach of warranty does not authorize the purchaser to rescind the contract or return the property: Crabtree v. Kile, 21 Ill. 180; Kase v. John, 10 Watts, 109; Vorhees v. Earl, 2 Hill, 288; Casey v. Gruman, 4 Hill, 626; West v. Cutting, 10 Vt. 536; Myer v. Dwinell, 3 Wms. 298.
When the purchaser has the right to return the goods, he must do so within a reasonable time: Woods v. Kirk, 8 Foster 324; Weed v. Page, 7 Wis. 503; Garland v. Spencer, 46 Me. 528; Doane v. Dunham, 65 Ill. 512; Frankenfield v. Freyman, 1 Har. 56; Dailey v. Green, 3 Har. 118.
A party cannot receive and retain a part of that for which he bargained, and then refuse to perform his part of the agreement: Benjamin on Sales, 452; Ellen v. Topp, 6 Exch. 424; Behn v. Burness, 3 B. & S. 751.
Mr. WM. J. ALLEN, Mr. W. H. WOODWARD, and Mr. F. E. ALBRIGHT, for defendant in error; that the plaintiff could not recover upon an implied contract, because there can be no implied contract where goods were sold under an express agreement, cited McMillan v. Vanderlip, 12 Johns, 165; Jennings v. Camp. 13 Johns, 94; Ketchum v. Evertson, 13 Johns, 365; Stevens v. Beard, 4 Wend. 604; Whitney v. Sullivan, 7 Mass., 109; Champlain v. Butler, 18 Johns, 169; Robertson v. Lynch, 18 Johns, 451; Champlain v. Rowley, 18 Wend. 187.
Indebitatus assumpsit will not lie in this case: Mead v. Degolyer, 16 Wend. 566.
Plaintiff should have declared specially: Factor v. Heath, 12 Wend. 477; Lendregan v. Crowley, 12 Conn. 563; Thornton v. Wynn, 12 Wheat. 183; Ashley v. Reeves, 2 McCord, 432.
The plaintiff in error sold the defendant in error a stock of drugs. The terms of this sale are in dispute. According to the plaintiff he sold the goods by an invoice which he received from one Patten of whom he had a short time before bought the same stock and the goods so purchased of Patten, less about one hundred dollars worth were all there at the time of the sale to the defendant; that the invoice amounted to $1,950; that he was to take out certain articles, leaving the amount sold worth $1,800 and that defendant was to take the stock so remaining on that basis, and was to pay therefor a stock of groceries valued at $750, a farm valued at $1,000, and was to pay cash to a firm in Louisville the sum of $50. For the wheat on the farm, which he was to keep, he was to convey to plaintiff a lot in Carbondale valued at $150.
Defendant's version is that plaintiff represented that the drugs were worth $1,900, for which he proposed to take the farm at $1,000, the stock of groceries at $700, the lot in Carbondale at $150, and $50 to be paid to the firm in Louisville. When the parties had apparently reached a point of agreement as to the details of the trade, the defendant said he wanted to know that the goods were all there, and at his instance he and the plaintiff, with some assistance, spent a part of one day in comparing the goods with the Patten invoice; and it is testified by the witness Boren, who was called by the plaintiff, that they then went over the goods which were on the shelves on the east side of the room and about half way on the west side, and when they had got to this point the plaintiff, who was a mail agent, said it was time for him to go to his train and that he could not remain longer; but at the instance of defendant he did remain for a short time longer, and this witness states that after some further comparison of the goods with the invoice, the defendant concluded to take the stock at the invoice, and thereupon the plaintiff gave him the key to the drug store, and received from him the key to the grocery store. The defendant testifies that on this occasion when he and the plaintiff were making an examination of the goods, the plaintiff said he could not stay any longer, and assured him that there were goods to the amount of $1,900 at wholesale prices, and if the goods were not found there he would put them there, and that upon the faith of this representation he then closed the trade. The defendant introduced other evidence tending to prove that state of facts, and on this point there is a conflict of testimony, as to which we refrain from expressing an opinion, as the case must be submitted to another jury for trial.
The defendant also states that having so received possession of the goods he opened the store for business, making sales in the ordinary course, and that in about two weeks he discovered that the stock amounted to considerably less than $1,900, and that, as appeared by an invoice taken a month after the trade, the value was barely eleven hundred dollars.
He futher says that a week or two after the trade, the plaintiff called on him for a deed for the farm, but that he then declined to make it, and that he so declined, and so told the plaintiff, because he was not satisfied that he had got the full amount of goods he had bargained for. He finally sold the stock to his brother for the sum of twelve hundred dollars, having been in possession ever since the trade, during which time he had reduced the stock by sales in the ordinary course of business, and had replenished to some extent by adding fresh goods. Upon the farm there was a mortgage for $200, and it was a part of the agreement that to secure plaintiff against this lien, defendant was to give him a mortgage on two lots in Carbondale, but about the time or shortly after-that plaintiff requested the deed, defendant conveyed these lots to his father, though, as he asserts, with the understanding that the latter would make the mortgage if plaintiff should comply with his part of the contract. After defendant sold the stock to his brother, plaintiff brought his action of indebitatus assumpsit for the value of the goods. A trial by jury resulted in a verdict for defendant, and a motion for a new trial having been overruled, and judgment entered on the verdict, plaintiff brings the record here and assigns various errors as to the action of the court in giving and refusing instructions and in overruling the motion for a new trial. It is not to be doubted that plaintiff sold, and defendant purchased the specific lot of goods in question, and that...
To continue reading
Request your trial