Conner v. Henderson
Massachusetts Supreme Judicial Court
This was an action of the case in assumpsit, alleging that the defendant undertook to sell and deliver to the plaintiff eighty-nine casks of lime of good quality, but in fact delivered him eighty-nine casks of lime of little value, not merchantable. There was a second count much like the first; and a third count for money had and received. Trial on the general issue, before Putnam, J., at the sittings here after the last November term.
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This was an action of the case in assumpsit, alleging that the defendant undertook to sell and deliver to the plaintiff eighty-nine casks of lime of good quality, but in fact delivered him eighty-nine casks of lime of little value, not merchantable. There was a second count much like the first; and a third count for money had and received. Trial on the general issue, before Putnam, J., at the sittings here after the last November term. The plaintiff produced the defendant’s bill of parcels of 89 casks of lime to the plaintiff at 10s., amounting to 148 dollars 33 cents. It was proved that the…
1Per curiam
The evidence reported will not maintain the action on either of the first two counts. There was no express warranty respecting the quality of the article. Neither can the plaintiff recover on his count for money * had and received. If he would have rescinded the contract, and so have entitled himself to a return of the money paid, it was necessary that he put the defendant in the same situation he was in before the delivery of the article. This was settled in the case of Kimball vs. Cunningham; and although the principal subject of the contract, in the present case, may be presumed, from the…
2Cited by61 opinions
- Kauffman v. RaederCourt of Appeals for the Eighth Circuit · 1901
- Kimball v. CunninghamMassachusetts Supreme Judicial Court · 1808
- Whalen v. GordonCourt of Appeals for the Eighth Circuit · 1899
- Bassett v. BrownMassachusetts Supreme Judicial Court · 1870
- Snow v. AlleyMassachusetts Supreme Judicial Court · 1887
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