22 S.D. 139 | S.D. | 1908
This is an appeal by the defendant from a judgment entered upon a verdict of a jury in favor of the plaintiff.- The action was instituted by the plaintiff -to recover from the defendant the sum of $280, which he had paid to the defendant upon the purchase of a team-of horses, and which the plaintiff claim-s was rescinded by consent. ■ The answer was a general denial. At the conclusion of-plaintiff’s evidence the defendant moved the court to direct a verdict in his favor, which motion was denied, and, the motion not being renewed at the conclusion of ail the evidence, the same must be deemed waived. Haggarty v. Strong, 10 S. D. 585, 74 N. W. 1037; Brace et al. v. Van Eps, 12 S. D. 191, 80 N. W. 197; Seim v. Krause, 13 S. D. 530, 83 N. W. 583; Torrey v. Peck, 13 S. D. 538, 83 N. W. 585.
■ It is contended, by the defendant that- the verdict of the jury, finding as it did, in. effect, that there was a rescission of the contract by mutual -consent, was not supported by the evidence. It is disclosed by the evidence that" the plairlt-iff purchased of the de
It is not essential that the defendant- in express terms consent to the rescission of the contract, but such consent may be implied from his acts or conduct, and where, as in the case at bar, th.e defendant .receives back the .property, sold and-retains, tlie .same without objection or notice to-the other, party .that he.-refused to accept the same, his ■ -consent will be presumed, and the law. raises an implied agreement on the part of the seller to refund the consideration paid,for the- property. The learned, author on th,e subject of Sales (24 Am. & Eng. 'Enc. of Law, .1097.); says :■ “Consent to ’-escission may -be either express or implied from- the- language and
The judgment of the circuit court-and order denying a new trial are affirmed.