181 Ky. 535 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
(a) The only relief sought in the action by appellant, Williams, was a rescission of the contract? under which the machine was sold and a restoration to him of the amounts, which he had paid of the purchase price. He now has possession of the machine and has never at .any time, before the bringing of his suit, offered to rescind the contract, nor tendered to appellee, the machine, nor in any way offered to place him in the same condition, in which he was before the contract, and does not even in the pleadings or otherwise in this case offer to return the machine, to appellee. ' It is a well settled principle, that a vendee of personal property, under an executed contract, where a breach of warranty accompanying its sale is broken, the vendee has choice of two remedies, where the stipulations of the contract are not to the contrary. He may, within a reasonable time, either return or offer to return the property to vendor and sue for a rescission of the contract-; .or he may elect to retain the property, and sue for the damages, he has suffered, from the breach of the warranty. Hauss v. Surran, 168 Ky. 686; Cook v. Gray, 2 Bush 121; Harrigan & White v. The Advance Thresher Co., 81 S. W. 261; Ruby Carriage Co. v. Kremer, 26 R. 274; Glover Machine Works v. Cook Jellico Coal Co., 173 Ky. 675; Miller v. Gaither, 3 Bush 152; McCormick Harvesting Machine Co. v. Arnold, 116 Ky. 508.