Hambrick v. Wilkins

Citations

• 65 Miss. 18

Syllabus

<p>1. Sale. Fraud of vendor. Return of property. Duty of vendee.</p> <p>A purchaser induced to buy personal property by the fraudulent warranty of the vendor, who offers to return the same as soon as he discovers the fraud, if the vendor refuse to receive it, may, thereafter, having first given notice of his intention, dispose of the property in good faith for the account of such vendor, or may keep the same as his agent pending litigation in respect thereto.</p> <p>2. Same. Fraud therein. Rescission of contract.. Sale by purchaser.</p> <p>And if, after such tender and refusal, the purchaser dispose of the property not in good faith, he is not thereby prevented from rescinding the fraudulent contract, but is liable for the market value of the property.</p> <p>3. Same. Action for breach of warranty. After price paid. Measure of recovery.</p> <p>If, in such case, the purchaser has paid the purchase price before discovering the fraud, the measure of his recovery from the vendor is the difference between the price paid and the market value of the property, less the price of keeping the same during the controversy between the parties.</p> <p>4. Attachment. Variance between cause of action in writ and declaration.</p> <p>A plaintiff may not attach for one cause of action and having sustained his writ declare for another. Digon v. Bishop, 43 Miss. 527, cited.</p> <p>5. Same. Gase in judgment.</p> <p>W. brought an action against H. for a breach of warranty in a certain contract, and also sued out an attachment against the property of H., alleging that the defendant “fraudulently incurred the obligation for which suit is brought.” Held, that there was no variance as to the cause of action as stated in the attachment writ and in the declaration.</p>