Defenbaugh v. Weaver

Citations

• 87 Ill. 132

Syllabus

<p>1. Sale—waiver by acceptance. Although a contract may be for the sale of a specific number of cattle, and embrace a warranty that they shall average so much per head, and an agreement on the part of the vendor to keep them from food and water for twelve hours before weighing, yet if the purchaser, with a knowledge of the facts, accepts a less number of cattle, not averaging the specified weight, and ships them, he will be considered as having waived a strict compliance with the contract, and will be liable to pay the contract price for as many cattle as he gets.</p> <p>2. Pleading and evidence—recovery for part. A party suing for the price of cattle sold and delivered and for hogs sold and refused to be taken, is not precluded from recovering at all if he fails to show a sale of the hogs. Under a proper state of pleading he may recover for the cattle sold and delivered.</p>