Mizell v. Watson

Citations

• 57 Fla. 111

Syllabus

<p>1. The plea-of not guilty is applicable in actions for wrongs independent of contract.</p> <p>2. In an action to recover by way of rescission for a return of the price paid for a horse warranted to be sound, if the defendants would deny the fact of the sale of the horse or the warranty thereof they should plead non-assumpsit, or a plea traversing the contract or agreement.</p> <p>3. If the making of a sale and warranty is admitted and the defendants would deny the breach of the warranty, a plea of confession and avoidance is proper. Under Rule 66 of the Circuit Court in common law actions, matters in confession and avoidance, including those by way of discharge or performance must be specially pleaded.</p> <p>4. The buyer of a horse and buggy under a contract of warranty of the horse, the contract of purchase being entire, cannot recover the price upon a breach of the warranty where he retains possession of the buggy, and does not return or offer to return it to the seller in rescission of the contract, the buggy not being worthless.</p> <p>5. If a vendee of chattels, upon the refusal of the vendor to accept an offer of their return, when a right to rescind the sale exists, takes the property and uses it as- his own, he thereby loses such right. He cannot retain the property using it as his own, and at the same time rely upon a previous tender as a rescission.</p> <p>6. The right to rescind a contract of sale must be exercised promptly upon the discovery of the facts giving rise to the right of rescission. Any unreasonable delay, or any action taken in continued recognition of the contract as a binding obligation, amounts to a ratification or election to abide by the contract and bars a subsequent rescission.</p> <p>7. Whether an offer to rescind a sale of chattels and return them to the seller was made within a reasonable time is, in general, a question of fact for the jury.</p> <p>8. Where the facts are not disputed, the question of what is a reasonable time in