Rubenstein v. Grossman-Winfield Millinery Co.
| Decision Date | 06 December 1915 |
| Docket Number | 16978 |
| Citation | 110 Miss. 213,70 So. 210 |
| Court | Mississippi Supreme Court |
| Parties | RUBENSTEIN v. GROSSMAN-WINFIELD MILLINERY CO |
APPEAL from the circuit court of Forest county. HON. PAUL B. JOHNSON, Judge.
On suggestion of error. For former opinion see 69 So. 688.
The facts are stated in the opinion of the court.
Suggestion of error overruled.
R. S. Hall, for appellant.
T. C. Hannah and John Haney, for appellee.
We do not think there is any conflict in the decision heretofore rendered in this case with the holding of this court in Hutchins v. Smith-Harrison Company, 106 Miss. 852, 64 So. 789. In the Hutchins Case, supra, the appellant bought a certain kind of goods, which were actually shipped, but the seller shipped other goods, which were not bought. The purchaser retained the goods bought, and returned the goods not bought. In the present case the purchaser bought a "job lot," represented to contain not more than four dozen hats of different styles and values. The seller misrepresented the number of the hats in the "job lot," and there was no way to identify and separate the goods bought from the goods not bought, and when the purchaser discovered this fact it was incumbent upon him either to reject the entire shipment, or to receive all and pay for same.
It is not claimed in the present case that appellant actually purchased the identical hats retained by him, and that he returned the hats not purchased. He merely selected from the lot three or four dozen hats and returned the balance. The distinction between the Hutchins Case and the present case was clearly pointed out in the original opinion; but, since appellant still insists that there is a conflict in the decisions, we deem it advisable to emphasize the patent difference in the facts of the two cases.
Suggestion of error is overruled.
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Hytken Bros. v. International Dress Co
... ... Horton, 41 Miss. 370; Ormand v. Henderson, 77 ... Miss. 34, 24 So. 170; Rubenstein v. Grossman-Winfield ... Millinery Co., 109 Miss. 819, 69 So. 688; 110 Miss. 213, ... 70 So. 210; ... ...
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Evans-Terry Co. v. Liberty Mills
...v. Braun, 26 Am. St. 452; See Ormond, et al. v. Henderson, 77 Miss. 34, 24 So. 170; Rubenstein v. Grossman Winfield Co., 69 So. 688 and 70 So. 210. also, the interesting and instructive case of Barrow & LeBlanc v. Penick & Ford, 34 So. 691. So far we have assumed for the sake of argument, t......
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