Menge & Sons v. Gulf & Ship Island Railroad
Mississippi Supreme Court
Menge & Sons v. Gulf & Ship Island Railroad, 97 Miss. 810 (Miss. 1910)
53 So. 424
Smith
Menge & Sons v. Gulf & Ship Island Railroad
Opinion of the Court
delivered the opinion of the court.
Appellee, having voluntarily paid for the coil of rope with full knowledge that it was not of the diameter purchased, if the fact be, as claimed by appellee, that it was not of such diameter, and- after having been advised by appellant -that it would not agree to return of same, cannot now set-off the amount paid appellant for this rope against the amount due appellant for the purchase of other articles. Anderson v. Western Union Tel. Co., 77 Miss. 851, 27 South. 838. The peremptory instruction requested by appellant ought, therefore, to have been given.
Reversed and remanded.
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- Payment. Voluntary payment. Not recoverable when. Buyer ana seller. Where a buyer, having ordered, an article of merchandise from a seller, received a different article from that ordered and voluntarily paid for it upon refusal by the seller to take it back, he cannot recover the purchase money paid in a direct suit, nor ■by way of a set off when sued by the seller for other goods, since voluntary payments, made with full knowledge of the facts, are not recoverable.