Lester v. Percy

(concurring) — While I have signed the court’s opinion, there are additional reasons which to me are extremely persuasive for reversing the judgment. The dismissal of the action by the trial court affords additional proof of the truth of the comment of the great English scholar, Sir Frederick Maitland, that “The forms of action we have buried, but they still rule us from their graves.”

The prayer of the complaint was for the rescission of a contract of sale and the recovery of the purchase price. The respondents admit the breach of a warranty of fitness. The first territorial legislature of…