Wolf v. Dietzsch

Citations

• 75 Ill. 205

Syllabus

<p>1. Sale — seller must show he delivered according to order. Where wine is ordered to be forwarded to the purchaser, the burden of proof, in an action for the price, is upon the seller to show that he complied with the order by delivering to the carrier the kind of wine ordered, for when an article is sold by a particular description, it is a condition precedent to the vendor’s right of action that what he offers to deliver, or has delivered, shall answer this description.</p> <p>2. Same — subsequent damage, when the purchaser loss. Where a party in Chicago gives an order on a house in New York city for a particular kind of wine,of good quality, it is the duty of the seller to deliver to the carrier the wine ordered, using the usual and reasonable precautions to insure its prompt and safe delivery to the purchaser, and if he does so, the property will vest in the purchaser, and any subsequent injury it may sustain will be the loss of the latter.</p> <p>3. Same — rescission must be in toto. The doctrine repeatedly announced by this court is, that a party cannot affirm a contract in part, and rescind it as to the residue. If he rescinds, he must do so in toto. He must put the opposite party in as good condition as he was before the sale, by a return of the property purchased, unless it is entirely worthless.</p> <p>4. Same — acts precluding a rescission. Where a vendee has a right to object that goods delivered are different in quality from those he purchased, he must do so within a reasonable time, and before exercising acts of ownership over them. If, before objecting to their quality, he exercises any act of ownership over them, as, by selling a part, etc., he cannot after-wards repudiate the contract, so as to wholly defeat the vendor’s claim for the price.</p>