Conrad v. Dater

U.S. Circuit Court for the District of Eastern Wisconsin

Conrad v. Dater

6 F. Cas. 335, 2 Biss. 342

CourtU.S. Circuit Court for the District of Eastern Wisconsin

DecidedJune 15, 1870

StatusPublished

This text of 6 F. Cas. 335 (Conrad v. Dater) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Eastern Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Conrad v. Dater, 6 F. Cas. 335, 2 Biss. 342 (circtedwi 1870).

Pincite

Opinion

DRUMMOND, Circuit Judge.

The sugar being a different article from what the plaintiffs had purchased, they had the right to decide whether they would accept the same, and, in order to determine this, they must have had an opportunity to examine it. It was not competent for the defendants to send a different article from that which the plaintiffs had agreed to buy, and then compel them to take it, and sue the defendants on their warranty; but, under such circumstances, the plaintiffs had the right to decline to receive it, notifying the vendors at once of the fact, demand the money which they had paid. and. on failure of payment to bring this action. They could also recover for the freight which had been paid, on the ground that it was paid before they had an opportunity of knowing whether the article was of the kind and quality represented. This is not like the case of a party receiving' property with the knowledge that it did not correspond with the quantity represented. In this ease the contract was executory, and not executed. The plaintiffs had performed their part of the contract, and the [336]*336defendants had not. This was an agreement to sell goods of a certain kind and quality, but they had not been delivered, and there is no legal way by which a man can be compelled against his will to accept an article which he had not agreed to buy. The plaintiffs are, therefore, entitled to recover the money paid for the sugar, as well as on account of freight, and the defendants are entitled to take the sugar.

NOTE [from original report]. For a full discussion of the rights and remedies of the ven-dee of chattels sold with warranty, consult Ohandelor v. Lopus, 1 Smith, Lend. Cas. 2(U, 275, 2S1; Cutter v. Powell, 2 Smith, Lead. Cas. 32. And even where there is no warranty, if the articles he of a decidedly inferior quality, the purchaser may rescind the contract, and, on restoring the articles, recover_ the purchase price. Conner v. Henderson. 15 Mass. 319; Cray v. Cox, 4 Barn. & C. 108; Jones v. Bright, 3 Moore & P. 155; 4 Kent, Comm. 479, 4S0.

The .-judgment will be for the plaintiffs accordingly.

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DRUMMOND, Circuit Judge.

The sugar being a different article from what the plaintiffs had purchased, they had the right to decide whether they would accept the same, and, in order to determine this, they must have had an opportunity to examine it. It was not competent for the defendants to send a different article from that which the plaintiffs had agreed to buy, and then compel them to take it, and sue the defendants on their warranty; but, under such circumstances, the plaintiffs had the right to decline to receive it, notifying the vendors at once of the fact, demand the money which they had paid. and. on failure of payment to bring this action. They could also recover for the freight which had been paid, on the ground that it was paid before they had an opportunity of knowing whether the article was of the kind and quality represented. This is not like the case of a party receiving' property with the knowledge that it did not correspond with the quantity represented. In this ease the contract was executory, and not executed. The plaintiffs had performed their part of the contract, and the [336]*336defendants had not. This was an agreement to sell goods of a certain kind and quality, but they had not been delivered, and there is no legal way by which a man can be compelled against his will to accept an article which he had not agreed to buy. The plaintiffs are, therefore, entitled to recover the money paid for the sugar, as well as on account of freight, and the defendants are entitled to take the sugar.

NOTE [from original report]. For a full discussion of the rights and remedies of the ven-dee of chattels sold with warranty, consult Ohandelor v. Lopus, 1 Smith, Lend. Cas. 2(U, 275, 2S1; Cutter v. Powell, 2 Smith, Lead. Cas. 32. And even where there is no warranty, if the articles he of a decidedly inferior quality, the purchaser may rescind the contract, and, on restoring the articles, recover_ the purchase price. Conner v. Henderson. 15 Mass. 319; Cray v. Cox, 4 Barn. & C. 108; Jones v. Bright, 3 Moore & P. 155; 4 Kent, Comm. 479, 4S0.

The .-judgment will be for the plaintiffs accordingly.

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6 F. Cas. 335, 2 Biss. 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conrad-v-dater-circtedwi-1870.

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