15 Mo. 101 | Mo. | 1851
delivered the opinion of the coast.
It can scarcely be necessary to say, that the court committed no error in admitting parol evidence of the contract between the parties, there being no written one. On no pretence can it be said that the open account was a written contract.
The instruction given by the court, at its own instance, was liable to exception. Without entering into the question, whether a contract with a warranty, as to quality in a sale of chattels, which contract has been executed, the vendee, for a breach of warranty in a case unaffected with fraud, can return the article, when there has been no stipulation to that effect, and recover the purchase money, or is driven to his action on the warranty, we are of opinion, that on other grounds the instruction cannot be sustained. The charge goes the length of maintaining, that in a sale of goods with warranty, the vendee may take them, select such as will answer the warranty, and return the remainder. In such a case, if there could be a recision of the contract, it would seem that it should be entire. Where there is a sale, with warranty, of a lot of goods, consisting of many articles, it would he manifestly unjust to permit the vendee to select such, as he supposed, corresponded with the warranty, and return the remainder. Such a course, in most cases,
There is authority for saying, that between vendor and vendee, an order on a depository is a delivery of goods sold, when the order has been delivered to the vendee.
The other Judges concurring, the judgment is reversed and the cause remanded.