Syme-Eagle & Co. v. Joplin Grocer Co.
Missouri Court of Appeals
Appeal from the Jasper Circuit Court.— Hon. Joseph D. Perkins, Judge. (1) The following oases hold that a rescission must be in toto, and that a party cannot affirm a contract in part and repudiate it in part.
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Appeal from the Jasper Circuit Court.— Hon. Joseph D. Perkins, Judge. (1) The following oases hold that a rescission must be in toto, and that a party cannot affirm a contract in part and repudiate it in part. Hunter v. Slenbach, 17 G-a. 243; Bell v. Keep, 39 Kan. 105, 17 Pac. 785; Grimes v. Sanders, 93 U. S. 51; Brill v. Rock, 23 S. W. 511; Barrie v. -Earl, 143 Mass. 1, 8 N. E. 639; Merrill v. "Wilson, 66 Mich. 232, 33 N. W. 716; Estes v. Reynolds, 75 Mo. 563; Burnham v. Spooner, 10 N. H. 532; Butler v. Prentiss, 36 N. Y. Sup. 301. (2) The following cases hold that the filing of suit is an…
1DissentFarrington, J.
(dissenting.) I do not concur in the part of the majority opinion holding that plaintiff cannot recover because it is in the nature of a rescission, and plaintiff did not tender back to defendant all the canned corn it received under the purchase contract. I think the judgment should be affirmed.
It should be kept in mind that this suit is not properly one in equity to rescind an executory contract. The contract in question was fully performed by both parties; that is, the canned corn sold by one party had been fully delivered, and the other party had paid for it. After the contract was fully…
2Cases cited4 opinions
- St. Louis Brewing Ass'n v. McEnroeMissouri Court of Appeals · 1899
- Grafeman Dairy Co. v. St. Louis Dairy Co.Missouri Court of Appeals · 1902
- City Light, Power, Ice & Storage Co. v. St. Marys Machine Co.Missouri Court of Appeals · 1913
- Sigerson v. HarkerSupreme Court of Missouri · 1851