Dickinson v. Lane

107 Mass. 548

Opinion

Ames, J.

The plaintiff’s declaration (of which the bill of particulars must be considered as a part, — Gen. Sts. c. 129, § 10) charges that the defendant warranted the horse, and that the warranty was broken. He rests his claim to recover back the purchase money upon no other ground. Upon the case presented by the declaration, if there was no warranty or no breach, the money was properly paid, and in equity and good conscience belonged to the defendant. Stone v. Knight, 23 Pick. 95. The ruling which the plaintiff requested the court to make was substantially that he should be excused from proving the vital elements of his case, as he had seen fit to present it for trial. A subsequent agreement to rescind the original contract, and return the money, was an entirely different matter, of which the declara tian gave no intimation, and plainly was not allowable as a ground of claim in this action without an amendment. The ruling requested was therefore rightly refused.

Exceptions overruled.