20 Kan. 204 | Kan. | 1878
The opinion of the court was delivered by
This was an action brought by the plaintiff in error in the court below to recover upon a note for the sum of $1,142.72, given by the defendant to the plaintiff, September 23d 1874, and due in thirty-seven days from date. The defendant answered the petition of the plaintiff by a general denial, and a plea of failure of consideration for the note, in this, that the meat for which the note was given was not the kind which he agreed to purchase, and that he returned the same and rescinded the contract. He also pleáded a counterclaim, about which there was no controversy. The answer was not verified, and hence the execution of the note wfis admitted. The issues were made up by the reply of the plaintiff — a general denial of the new matter in the answer. The evidence on the trial showed that the consideration of the note was a certain bill of meat sold by the plaintiff to the defendant, and the plaintiff knew the market for which the defendant bought the meat, viz., for the use of men engaged in mining coal iri the coal mines in Bourbon county, near Godfrey station, on the Missouri River, Fort Scott & Gulf railroad. It further showed that the defendant claimed that the meat did not comply with his contract of purchase, and that he returned the meat to the defendant, and claimed a rescission of the contract. The case was tried to a jury, and certain special findings of fact were returned. The general verdict was in favor of the defendant, and judgment was entered accordingly. The plaintiff claims that the judgment
Ques. 1 — Where was the meat delivered by the plaintiff to the defendant ? Ans.-At Kansas City.
Ques. á?.-Was the meat in good merchantable condition when it was delivered by the plaintiff to the defendant? Ans.-No; not quite.
Ques. A-Did the plaintiff, when he obtained the note from the defendant’s agent, make false or fraudulent representations to said agent, which induced said agent to givé the note to the plaintiff. Ans.-No.
Ques. Was the meat in .as good condition when it was returned to the plaintiff as when he delivered the meat to the defendant, except any depreciation arising from unsoundness when delivered ? Ans.-No.
Ques. 5.-Was the meat mentioned in defendant’s answer the only consideration for the note sued on in this action ? Ans.-Yes.
Ques. (?.-Did said defendant rescind said contract as soon as he found said meat was -unmarketable, and not the kind of meat contracted for ? Ans.-Yes.
Ques. 7. — Did the defendant contract with the plaintiff for merchantable meat? and did defendant make known to plaintiff the purpose for which he intended said meat ? Ans.Yes.
Ques. <§.-Did the defendant return said meat to plaintiff so soon as he found it to be unfit for the use for which he purchased, and unmerchantable? Ans.^Yes.
Ques. 5.-Did the plaintiff comply with his contract with the defendant, as to the different kinds of meat ordered; that is, in reference to the number of pounds of each kind ? Ans.-No.
The sole question presented is, whether the special findings harmonize with the general verdict? Counsel for plaintiff assert that the findings show that the defendant did not put the plaintiff in such a condition as entitled him to a rescission of the contract; that the meat was not returned in as good condition as it was when he received it, allowing for any unsoundness it had when'delivered, and that he failed to take
The judgment will be affirmed.