
    No. 36
    BIGGS-WATTERSON CO. v. SAUER (Receiver)
    Court of Appeals, Second District, Montgomery County
    Decided Nov. 23, 1922
    For fuller opinion see Dayton Daily Court Reporter, Nov. 29, 1922
    REPLEVIN — Evidence of waiver of contract of sale, admissible under a general denial.
    Error to Montgomery Common Pleas.
    Attorneys — Murphy, Elliff & Leen, for plaintiff; W. S. Rotschamel and Davisson, D. & Sheridan, for defendant.
   BY THE COURT:

Epitomized Opinion.

This is an action to replevin certain property sold for cash by the above plaintiff, to the debtor. The property not having been paid for, the title of the property did not pass to the purchaser, whom the receiver represents. The common pleas held that the said plaintiff, had by its conduct, waived its right to an enforcement of the contract of sale. The Court of Appeals affirmed this decision.

Counsel for the Biggs-W. Co. contended that evidence of a waiver could not be introduced, under a general denial. This court held that while this is true in most cases, a general denial in a replevin case is sufficient to permit evidence of a waiver.  