Bounomo v. United Distiller's Co.

Citations

• 77 Pa. Super. 113
• 1921 Pa. Super. LEXIS 219

Syllabus

<p>Appeals — Assignments of error — Practice of Superior Court.</p> <p>Assignments of error which do not conform to the rules of the Superior Court will not be considered on appeal.</p> <p>Contracts — Rescission of contracts — Waiver—Case for fury.</p> <p>In an action of assumpsit for breach of contract, the case is for the jury to determine whether or not the defendant has, by its actions, waived the right of cancellation, where it did not rescind the contract upon the first breach by the plaintiff, but continued to assert the same and subsequently cancelled the contract, without notice to the other party.</p> <p>A party to a contract cannot both rescind it, and at the same time retain in its hands money advanced in consideration thereof. If it desired to cancel the contract, it could do so and return the excess consideration given on account, or it could waive the right to cancel, affirm the contract, and insist upon its fulfillment. It cannot do both, nor having definitely chosen its course, can it shift its position as might seem to its advantage, without fair notice to the other party to the agreement.</p>