Feight v. Thisler

Citations

• 84 Kan. 185
• 114 P. 249
• 1911 Kan. LEXIS 301

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Conditional Warranty — Waiver of Condition. Where there is a condition in a contract of sale that if the animal sold is not as warranted it may he returned -to the seller if it is as sound as when sold, and where the animal turns out to be unsound and unfit for the purpose for which it was purchased, and the buyer is induced by the seller to retain the animal and attempt to cure it of infirmity and defects by remedies furnished by the seller, the condition for its return is waived and the fact that it is not returned will not preclude a recovery of damages for the breach of the warranty.</p> <p>2. PLEADINGS^-Tewder — Time of Acceptance. Where an offer based on an alleged settlement pleaded in an answer is not accepted by the plaintiff, and a trial is had that results in a verdict, which is set aside by the court and a new trial granted, and the offer in the answer is not withdrawn, and the plaintiff then files an acceptance of the offer and moves for judgment on the pleadings, and defendant joins in a hearing as to whether the proposed acceptance is a compliance with the conditions of the offer, and does not withdraw the offer nor object to the hearing because the offer is no longer available, the offer will be deemed to he a continuing one, and upon acceptance and compliance with its conditions the court is warranted in entering judgment in conformity with the offer and acceptance.</p> <p>3. Jury Trial — Waiver. By proceeding with the hearing as to plaintiff’s compliance with defendant’s offer without demanding a jury the parties are deemed to have waived a jury trial of the question of fact involved.</p>