82 So. 257 | Miss. | 1919
delivered the opinion of the court.
Appellant, a corporation, was plaintiff in the court below, and prosecutes this appeal from a judgment' entered in' pursuance of a peremptory instruction in favor of appellee as defendant: In January, 1913) appellant placed with the appellee a written order for a carload of lumber of certain specifications. Appellee, a corporation engaged in the manufacture of lumber, accepted the order, attempted to dress the lumber in accordance with its. interpretation of the written contract, and shipped the lumber to Jackson, Miss. The appellant company, engaged generally in the4 business of buying
This suit is by appellant to recover the original price paid, as also the freight. It appears that the lumber was finally rejected in March, 1913, and this suit was not instituted until five years thereafter. The three-year statute of limitations was pleaded, and the trial court ruled that the action was barred. -
The facts show that the contract for the purchase of this lumber was rescinded, because the lumber was not up to the dimentions specified in the' written order. Appellant and its consignee refused to accept the lumber, and tendered it back to appellee, and treated it as the property of the seller. The contract was rescinded and demand made for return of the original consideration. This being true it matters not whether the original contract of sale was written or verbal. The suit for the original consideration and freight 'paid is not a suit upon a written contract, but upon a contract implied by law. Whether the six-year statute governs in the case of an implied contract arising out of a written contract, or,
Affirmed.