| Mo. Ct. App. | Mar 21, 1905
(after stating the facts). — The only declaration of law asked was by defendant to the effect that under the law and the evidence plaintiff could not recover. The refusal of this declaration of law is the only error assigned. Defendant contends that it should have been given for two reasons: first, that the evidence is not sufficient to show that defendant warranted the horse to be sound and, second, that by acts of dominion exercised by plaintiff over the horse after the tender and offer to rescind, he lost his right to recover. In considering the question as to whether or not there was evidence sufficient to authorize the trier of the facts to find that the defendant warranted the horse to be sound, the evidence offered by the defendant must be left out of view and the evidence offered by plaintiff should be given full credence and the fullest probative force that can be ascribed to it. The language of the plaintiff is, “I
The defense, that after the attempted rescission plaintiff exercised such dominion over the horse as to preclude his right to recover, was an affirmative one and it devolved upon the defendant to prove it by a preponderance of the evidence. There it no evidence whatever that plaintiff used the horse in his business. All the evidence there is on this point was elicited from plaintiff and all that it shows is that he drove the horse at intervals, while he was being kept in the livery stable, for the purpose of giving him exercise to; prevent him becoming stiff from standing, and that on one occasion he took a young lady for a drive to Forest Park and back; this incident he characterized as an accident. We do not think this evidence conclusively . shows that plaintiff used the horse for himself or that his acts of dominion over, and use of, the horse were for any purpose other than for the good of the horse and were for the sole purpose of preventing him becoming stiff from continuous standing. It is a well-settled rule of law that a vendee of personal property, who- has been defrauded in a sale by the vendor, may tender back the property and rescind the contract, but if the vendor refuses to rescind and the vendee thereafter takes and uses the property as his own, he will be deemed to have waived all right derived from his tender. McCullock v. Scott, 13 B. Mon. (Ky.) 172; Glass Co. v. Friedlander, 84 Wis. 53" court="Wis." date_filed="1893-01-10" href="https://app.midpage.ai/document/cream-city-glass-co-v-friedlander-8184140?utm_source=webapp" opinion_id="8184140">84 Wis. 53. But the rule is not