207 P. 428 | Idaho | 1922
Appellant brought this action to recover on a check for $78.85 which was given him by respondent as the purchase price of a cow. Payment on said check was stopped by respondent for the reason, as claimed by him, that appellant’s warranty had failed. Respondent answered
It will be necessary to notice only two of the grounds urged by appellant in support of his motion for a new trial.
The first is the refusal of the court to sustain appellant’s objection to the introduction of any evidence in support of the cross-complaint because said cross-complaint “does not state a defense and does not state a cause of action on counterclaim or cross-complaint.” The particular point in this objection is that the cross-complaint contains no averment that respondent relied upon the alleged warranty. This objection was well taken and should have been sustained. (35 Cyc. 376, 450, and cases cited.)
The other ground is that the evidence is insufficient to justify the verdict for the reason that it shows without dispute that respondent purchased the cow on condition that he could rescind the contract of sale by returning the cow, and there is no evidence that he ever returned or offered to return her.
In his cross-complaint respondent alleges that he purchased said cow on a warranty by the seller that she would give three gallons of milk per day and that if she did not conform to said warranty the purchaser could return her and receive the purchase price. It is undisputed that this was the agreement between the parties, and respondent admits that prior to the bringing of the action on the cheek, though claiming a breach of warranty and attempting to rescind, he had not offered to return said cow. Besides, he testifies that appellant offered to take the cow back if he would return her.
“Generally, to rescind a contract an offer to return property received thereunder must be made before suit.” (13 C. J. 620, sec. 679; 35 Cyc. 445e; Nichols-Shepard Co. v. Rhoadman et al., 112 Mo. App. 299, 87 S. W. 62; Breshears
In this state of the record the motion for a new trial should have been granted, either of said grounds being'sufficient. Order, denying said motion is reversed and a new trial granted, with costs to appellant.