Morse v. Brackett
Massachusetts Supreme Judicial Court
Contract for part of the price of a lot of eight bags of wool. Answer, that the plaintiff warranted the lot as combing pulled wool, but the contents of one of the bags were not of that kind, and so were sent back to the plaintiff in another bag, the original bag having been destroyed in opening it.
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Contract for part of the price of a lot of eight bags of wool. Answer, that the plaintiff warranted the lot as combing pulled wool, but the contents of one of the bags were not of that kind, and so were sent back to the plaintiff in another bag, the original bag having been destroyed in opening it. At the trial in the superior court, before Lord, J., the facts appeared substantially as follows : The plaintiff was a wool-factor, and had in store a separate lot of eight bags supposed by him to contain combing pulled wool, each of them marked “ Parsons,” with a black line drawn about the word so…
1Opinion of the CourtBigelow, C. J.
This case comes within the familiar principle that no contract can be rescinded unless both parties are restored to the condition in which they were before the contract was made. One party cannot insist on the validity of a contract as to one portion of the subject matter, and claim to set it aside or avoid it as to the residue. The vendee of a specific quantity of merchandise sold under an entire contract cannot retain a portion to his own use and return the remainder to the vendor. If he receives and holds a part, he will be liable in assumpsit for the whole. If on the ground of fraud or…
2Cases cited2 opinions
- Kimball v. CunninghamMassachusetts Supreme Judicial Court · 1808
- Conner v. HendersonMassachusetts Supreme Judicial Court · 1818
3Cited by37 opinions
- Bassett v. BrownMassachusetts Supreme Judicial Court · 1870
- Higham v. HarrisIndiana Supreme Court · 1886
- Snow v. AlleyMassachusetts Supreme Judicial Court · 1887
- Young & Conant Manufacturing Co. v. WakefieldMassachusetts Supreme Judicial Court · 1876
- Johnson v. BurnsideSouth Dakota Supreme Court · 1892
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