36 Neb. 417 | Neb. | 1893
This action was brought by defendant in error to recover the value of eleven cases of eggs, sold and delivered by her to plaintiff in error. There was a trial to a jury, who returned a verdict in favor of the plaintiff below for the sum of $41.37, and for which amount judgment was rendered.
In 1888, defendant in error was engaged in the general merchandise business at Auburn, this state, the business being conducted by her husband, J. C. Purcupile. During the same time plaintiff in error was engaged in the grocery business in the city of Omaha. Prior to December 18 of that year, Mrs. Purcupile had sent Mr. Babcock several consignments of butter and eggs, on account of which he owed her a balance amounting to $31.65. On said date she also sold and delivered to him eleven cases of eggs, to
At the trial exceptions were taken to the giving of the third, fourth, and sixth paragraphs of the court’s charge to the jury, and the principal grounds upon which we are asked to reverse the judgment are based upon said instructions. The instructions complained of are as follows i
“ 4. If, at the time of the purchase of the eleven cases of eggs by the defendant, it was agreed as part of the transaction that the amount due upon former shipments by the plaintiff to the defendant should be credited upon the amount due from J. H. Pureupile to the defendant, and that was done as claimed by the defendant, such agreement and credit became a closed transaction, and any demand subsequently made by the plaintiff from the defendant for payment of such old account would not justify the defendant in rescinding the contract of purchase of the eleven cases of eggs, especially after the plaintiff had disposed of a substantial part of such purchase; but in such case the remedy of the defendant was to insist upon the agreement, and refuse payment of such old account, which had been already paid by the credit upon the account of J. H. Purcupile, as claimed by the defendant.
“ 6. The fact that the defendant shipped six cases of the eggs to the plaintiff at Auburn, Nebraska, would not relieve defendant from his liability to pay for the same in the absence of proof that the eggs so shipped were accepted by the plaintiff, or that the defendant had the right to rescind
Counsel for defendant below concede that the general rule requires a party desiring to rescind a contract to place the other party in statu quo, but insist that the rule is not absolute; that in the case at bar Babcock was required only to do what he could to place the plaintiff in the same position; that having sold a part of the eggs and paid the seller for the same, the buyer, in order to rescind, was only required to return the eggs unsold; hence the instructions were erroneous. In the view we take of the case we do not deem it important to decide whether the charge of the court correctly laid down the law relating to the rescission of a sale of personal property, for it is to us plain that that there is no legal ground, either alleged or proved, for the rescission of the purchase in the case under consideration. In the first place, the defendant was not induced to enter into the contract under a mistake of fact, or through the false or fraudulent representations of the plaintiff as to an existing fact. All that is claimed is that the latter agreed that the former might apply the sum due on prior purchases on the indebtedness of J. H. Purcupile, and that plaintiff subsequently objected to such credit being made.' Such refusal was not a sufficient excuse for rescinding the contract. If the eggs were bought upon the condition claimed by the defendant, he could have credited the brother-in-law’s account with the amount due plaintiff on former consignments, and she could not have collected the same. But he voluntarily paid the money to plaintiff, which constituted a modification of the contract, and defendant is bound by the contract thus modified.
Again, the defendant is not entitled to a rescission for the reason that he did not return, nor offer to return, the eggs at the place where he received them. They were delivered to him in Omaha, while he sought to rescind by shipping a
Affirmed.