Ross v. Barker
Supreme Court of Missouri
Appeal from Newton Circuit Court. I. The court below erred in instructing the jury that, admitting all the testimony to be true, they are not entitled to recover ; because plaintiff has failed to prove an offer to . rescind the contract by returning or offering to return the negro girl Celia, mentioned in plaintiff’s petition before the commencement of this suit.
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Appeal from Newton Circuit Court. I. The court below erred in instructing the jury that, admitting all the testimony to be true, they are not entitled to recover ; because plaintiff has failed to prove an offer to . rescind the contract by returning or offering to return the negro girl Celia, mentioned in plaintiff’s petition before the commencement of this suit. It is now well settled that a failure on the part of the vendee to return the thing purchased is no bar to his right of recovery for breach of warranty, though it may be a limitation upon the measure of damages. (1 Pars, on Contr.…
1Opinion of the CourtNapton, Judge
This suit was for a breach of warranty of soundness in the sale of a slave, and upon the trial the court instructed the jury that the plaintiff could not recover, because there had been no offer to return the slave.
Where there was a breach of an express warranty, or a fraudulent and false representation, the liability of the vendor is not defeated by a failure on the part of the vendee to return or offer to return the property. This circumstance may affect the measure of damages, but is no bar to the action. (Fielder v. Starkie, 1 H. Black. 19.) The case of Stearns v. McCullough, 18 Mo. 414,…
2Cited by1 opinion
- Martin v. MaxwellMissouri Court of Appeals · 1885