McCall Co. v. Jennings
Utah Supreme Court
Appeal from the Second District Court, Weber County. —Hon. G. H. Hart, Judge. Action on contract. From a judgment in favor of the plaintiff, both parties appealed. If it be admitted that the letters written by the defendants constituted a breach on their part, the plain- ' tiff had an election of three remedies: “The one who has- been injured has an election to pursue any one of three remedies.
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Appeal from the Second District Court, Weber County. —Hon. G. H. Hart, Judge. Action on contract. From a judgment in favor of the plaintiff, both parties appealed. If it be admitted that the letters written by the defendants constituted a breach on their part, the plain- ' tiff had an election of three remedies: “The one who has- been injured has an election to pursue any one of three remedies. He may treat the contract as rescinded and recover upon quantum meruit so fa^r as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times himself ready…
1Opinion of the CourtMcCARTY, J.
Counsel for defendants (cross-appellants) contend that plaintiff, under the facts as disclosed by the record, is not entitled to recover the purchase or contract 1 price of the goods, and that its only remedy is by an action for damages for breach of contract. That is, if we understand counsel’s position, which is not clearly defined, the case should be reversed, for the reason that the facte proved make out a different case *464from the one alleged in the complaint; in other words, that there is a fatal variance between the pleadings and proof. Defendants did not raise this question in the court…
2Cases cited6 opinions
- American Contract Co. v. Bullen Bridge Co.Oregon Supreme Court · 1896
- Unexcelled Fire-Wks. Co. v. PolitesSupreme Court of Pennsylvania · 1890
- Davis v. BronsonNorth Dakota Supreme Court · 1891
- Wasatch Mining Co. v. Crescent Mining Co.Supreme Court of the United States · 1893
- Lebcher v. LambertUtah Supreme Court · 1900
1 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- St. George & Washington Canal Co. v. Hurricane Canal Co.Utah Supreme Court · 1937
- Passey v. BudgeUtah Supreme Court · 1934
- Stewart v. HansenUtah Supreme Court · 1923