Enterprise Soap Works v. Sayers
Missouri Court of Appeals
Appeal from the St. Louis City Circuit Court, Hon. Daniel D. Eisher, Judge. (1) The fact that respondent, having discovered the tallow was not np to sample on November 17,1889, continued for two months, without rescinding the contract, to negotiate for the tallow, under the contract, but at a rate below the contract price, is, together with a delay in .rescinding the contract for a period of two months, such an exercise of dominion over the tallow as would amount to an…
Read the full summary
Appeal from the St. Louis City Circuit Court, Hon. Daniel D. Eisher, Judge. (1) The fact that respondent, having discovered the tallow was not np to sample on November 17,1889, continued for two months, without rescinding the contract, to negotiate for the tallow, under the contract, but at a rate below the contract price, is, together with a delay in .rescinding the contract for a period of two months, such an exercise of dominion over the tallow as would amount to an acceptance and a waiver of its right to object on account of quality. Tiedeman on Sales, sec. 114; Benjamin on Sales [4 Am.…
1Opinion of the CourtRombauer, P. J.
This cause is here on its second appeal. On the former appeal (51 Mo. App. 310), we decided that two counts in a petition are inconsistent, where one seeks a recovery of damages for a breach of warranty in the sale of chattels, and the other a recovery on the ground that the sale had been rescinded by the plaintiff for cause. Our decision in short was to the effect that the affirmance of a sale in one count, and its denial in another, were inconsistent in point of fact, because the proof of one cause of action necessarily disproved the other. Both could not be true.
The case being remanded for…
2Cases cited6 opinions
- Harwood v. DiemerMissouri Court of Appeals · 1890
- Enterprise Soap Works v. SayersMissouri Court of Appeals · 1892
- Mantz v. MaguireMissouri Court of Appeals · 1892
- McManus v. GregoryMissouri Court of Appeals · 1885
- Calhoun v. PauleMissouri Court of Appeals · 1887
1 more not listed; retrieve them via the Exa API.
3Cited by8 opinions
- Woods v. ThompsonMissouri Court of Appeals · 1905
- Leone v. BearSupreme Court of Missouri · 1951
- State v. BrownMissouri Court of Appeals · 1903
- Pursley v. GoodMissouri Court of Appeals · 1902
- Dawson v. FlintonMissouri Court of Appeals · 1916
3 more not listed; retrieve them via the Exa API.