Hirsch v. Verschuur

The opinion of the court was delivered by

Swayze, J.

We cannot attribute as much force as the plaintiff to the fact that the suit was originally brought for breach of warranty or fraud in the sale of the coat. That was cogent evidence of an election to keep the coat and rely on the action for damages for breach. So, also, was the evidence of two payments on account, one two weeks and one a month after receiving the coat, and after wearing it. But we think the trial judge might properly tind, as he did, “that defendant immediately upon discovering the fraud took the coat *278back and rescinded, or…