In rendering judgment for the defendant *Page 526 upon the facts found, we think the trial court overlooked the real character of the action and of the issues framed by the pleadings. This is not an action to recover damages for a breach of contract to purchase an automobile, nor for a refusal to accept one which had been ordered; nor is it an action to recover a part of the agreed purchase price of the automobile ordered by the defendant. The pleadings show that it is an action upon a negotiable instrument, by the payee against the maker, and that the question of the latter's liability is to be determined by the rules of law applicable to such instruments.
The four, and only, defenses pleaded to such action, deny in effect that the defendant made such a delivery of the check as to enable the plaintiff to maintain an action upon it; they deny that the plaintiff is the owner of the check; and allege that the substitute check which was to be given was to be in part payment of the purchase price of an automobile which the defendant intended to order, but which intended order was revoked or countermanded before it was accepted; and allege that the paper delivered to the plaintiff was without consideration.
In his memorandum of decision the trial judge says that the plaintiff has failed to sustain the allegations of the complaint according to their full legal import, and the judgment-file states that the court finds the issues for the defendant. As we read the facts found, they not only sustain the allegations of the complaint, but fail to support any of the defenses pleaded.
First, the facts found show such a delivery of the check as entitles the plaintiff to sue upon it. The proposed substitution of a numbered check for the one given, was a trivial matter which was evidently not intended to change in any essential respect either the check given, or the rights of the parties under it. At *Page 527 the most it only gave the defendant the privilege of postponing payment of the $500 for such reasonable time as would enable him to send a numbered check. He has never attempted to avail himself of this privilege, although he has had ample time to do so. The court has found that the parties intended that the check delivered could be collected if a substitute check should not be sent. It is apparent that the defendant could have sent the substitute check had he wished to, as early as March 13th, when he wrote the plaintiff. The original check was not presented for payment until March 15th, and payment was not attempted to be enforced by suit until April 1st. As a matter of fact the defendant decided as early as March 13th not to send the substitute check, but to attempt to revoke the agreement.
Second, the facts show no such revocation or withdrawal of the order before it was accepted as is alleged in the answer, or as relieves the defendant from liability on the check. The writing describing the automobile was an order which, from its language, was not to be signed by the plaintiff. It does not appear that the salesman who took the order was required to countersign it at the time it was given, or that he was at any time to countersign the duplicate given the purchaser. The countersigning of such an instrument by the salesman is usually for the purpose of authentication or attestation, for the benefit of the one receiving the order. This order was properly countersigned by Webber after he received it, and without the defendant's knowledge. That the order was accepted so that it became binding upon both parties, is shown by the fact that it was delivered and received, and that the check was given and received as an advance part payment, and deposited in the bank by the plaintiff, and is further shown by the finding that, by the signing and *Page 528 delivery of the check and order, the defendant intended to order the automobile, and to deposit $500 to apply on the purchase price, and the plaintiff intended to furnish the automobile in accordance with the terms of the defendant's order.
The undertaking of the plaintiff as found by the court, to furnish the automobile in accordance with the terms of the order, was a sufficient consideration for the check, and further, the check is itself prima facie proof that it was issued for a valuable consideration. General Statutes, § 4194.
But it appears from the memorandum of the judge that the real ground of the decision of the trial court was that there was in effect a mutual rescission of the contract of sale by the parties, because the defendant by his letter of March 13th refused to carry out the contract, and the plaintiff failed to deliver or tender the automobile on the 25th of April. The court says in the memorandum: "It being admitted, or at least not disputed, that no delivery of the car was ever made, it follows that at the date of the suit the plaintiff had only a qualified title to the money, contingent upon delivery; and, further, that delivery has now become impossible by reason of the plaintiff's neglect or refusal to deliver or tender the car."
But there was no such issue in the case, as no such defense was pleaded. The third defense is that the defendant, before he had "consummated" his order and before the plaintiff had accepted it, revoked or countermanded his "wish to order." There is no suggestion in the answer that the plaintiff neglected or refused to deliver, in accordance with the terms of the written agreement, the automobile, as a part payment for which the check was given, or that it had become impossible for the plaintiff to deliver it, or that the plaintiff had in any manner treated the *Page 529 contract, as a part of which the check was given, as rescinded. And further, the facts found fail to show that the plaintiff has treated the contract as rescinded. It was the defendant's and not the plaintiff's fault, that the automobile was not delivered on the 25th of April. The agreement did not contemplate a tender of the car before the payment of the check. The plaintiff was to receive the $500 more than forty days before he was required to tender the car. On the 13th of March the defendant stopped payment of the check and wrote the plaintiff, in effect, that he would not take the car if tendered.
While it is found that under these circumstances the car was not tendered on the 25th of April, it does not appear that the plaintiff cannot or will not deliver the automobile within a reasonable time after the check is paid, and upon payment of the balance of the purchase price. This is all that he is required to do.
There is no intimation in Pierce v. Staub, 78 Conn. 459,62 A. 760, cited by the defendant, that a party who has advanced money in part payment of a contract, may alone rescind it and recover back the advance payment, while the other party is without fault and is ready and willing to perform his part of the agreement. The decision in that case is based upon the fact that the defendant had denied the right of the plaintiff's intestate to receive the property which was the subject of the contract of sale, and had disabled himself from performing his part of the contract by transferring the property to others, and had so treated the contract of sale as to in effect rescind it.
The fact in the present case, that the plaintiff made, under the circumstances, no tender of the automobile on the 25th of April, did not in law work a rescission of the contract of sale.
There is error and the judgment is reversed and the