Kimball v. Cunningham
Massachusetts Supreme Judicial Court
Trover for two steers. Upon not guilty pleaded, the action was tried at an adjournment of the last September term in this county, before Sedgwick, J. Upon the trial, it was agreed that the defendant had converted the steers to his own use.
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Trover for two steers. Upon not guilty pleaded, the action was tried at an adjournment of the last September term in this county, before Sedgwick, J. Upon the trial, it was agreed that the defendant had converted the steers to his own use. To prove the plaintiff’s property, it was in evidence that the plaintiff and defendant had agreed to exchange horses; and that the bargain was, that the defendant agreed to deliver the steers, and a note of one Phillips, together with his own horse, to the plaintiff, and was to receive the plaintiff’s horse, and to have his own note, which the plaintiff…
1Opinion of the Court
The opinion of the Court was afterwards delivered by
Parsons, C. J.
[After reciting the report of the judge.] When a horse is sold upon an implied warranty that he is sound, and at *441the time of the sale the vendor knows that he is not sound, this is such a fraud in him as will render the contract void, at the election of the vendee. If he chooses to consider the contract as void, he must return the horse within a reasonable time, and then he may maintain a general indebitatus assumpsit for the purchase money, as money had and received to his use. If he had exchanged horses and given * money as…
2Cases cited2 opinions
- Conner v. HendersonMassachusetts Supreme Judicial Court · 1818
- Bradford v. ManlyMassachusetts Supreme Judicial Court · 1816
3Cited by67 opinions
- Gould v. . Cayuga County National BankNew York Court of Appeals · 1881
- Connihan v. ThompsonMassachusetts Supreme Judicial Court · 1873
- Coggins v. New England Patriots Football Club, Inc.Massachusetts Supreme Judicial Court · 1986
- Higgins v. LansinghIllinois Supreme Court · 1895
- Whalen v. GordonCourt of Appeals for the Eighth Circuit · 1899
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