Citation Numbers: 40 Kan. 753
Judges: Hokton, Johnston, Simpson, Valentine
Filed Date: 1/15/1889
Status: Precedential
Modified Date: 9/8/2022
Opinion by
The judgment of the district court of Brown county heretofore rendered in this case in favor of the defendant in error, was reversed in this court in an opinion to be found in 33 Kas. 319. All the material facts in the case will be found to be stated therein, and as they do not now materially differ from the former trial, the decision then must control now. The controlling question in this case is as to whether or not there was an acceptance of the hogs. It seems to have been admitted all through the litigation that the hogs did not comply with the conditions of the contract, either as to average weight or smoothness. The contract called for ninety head of hogs, to weigh on an average of two hundred and forty pounds each or upwards; said hogs to be smooth and fat, and stags to be docked eighty pounds. The trial court instructed the jury (the facts being undisputed) that the average weight of the hogs was less than two hundred and forty pounds, and therefore the hogs did not comply with the conditions of the contract as to weight; and that there was evidence tending to show that part of the hogs did not comply with the terms of the contract as to being smooth and fat. The question of a waiver of these conditions, and an acceptance of the hogs by the plaintiff in error, is the only one that the jury had to consider and determine. The. jury reached the conclusion that there had been a waiver and acceptance, and returned a verdict for the value of the cattle and hogs, with interest from the date of delivery, less the $250 that was paid at the date of the execution of the conti’act.
The exact question here is, whether or not there was suffi
It is recommended that the judgment be reversed, and the cause remanded to the district court for further proceedings.
By the Court: It is so ordered.