Doane v. Dunham

Citations

• 65 Ill. 512

Syllabus

<p>1. Sale—right to return for breach ofwa/rrcvnty. Where there is a warranty on sale of goods, without fraud, and there is no stipulation in the contract that the goods may be returned, the vendee has no right to annul the contract without the consent of the vendor, for a breach of the warranty ; but in an action for the price, the warranty and breach may be given in evidence in mitigation of damages, on the principle of avoiding circuity of actions.</p> <p>2. There is, however, a distinction in this respect between an executed sale and an executory contract for a sale. In the latter case the goods may generally be returned as soon as .they are found not to satisfy the contract, if this is done in a reasonable time, and the purchaser has done nothing in the meantime beyond what is necessary to give them a fair trial.</p> <p>3. Where the defendant bought from plaintiff’s agent twenty barrels of Mollar and Martin’s powdered sugar without any inspection, to be paid for in thirty days, and to be delivered in the future, and there was, at the time of making the purchase, no selecting or setting apart of any specific barrels from the mass in store, so as to pass the property in presentí-. Held, that the contract was executory, and that the law in such a case would raise an implied warranty that the sugar should be of a fair and merchantable quality, and that the purchaser had a reasonable time after delivery to make a fair examination, and if it was not of the quality contemplated by the contract, to rescind the same, and thus defeat a suit for the price.</p> <p>4. If the purchaser under an executoiy contract fails to examine the goods purchased by him within a reasonable time, he will be precluded from the right to offer them back, rescind the contract, and avoid payment of the price on the ground that they are not of a fair merchantable quality; but he will still have the right to rely upon the implied warranty in mitigation of damages under the general issue, or, in o