Cooney v. Mossbach

Bridges, J.

By this action the respondent sought to rescind a conditional sales contract whereby he agreed to purchase from the appellants an Overland automobile, and to recover the amount he had paid on the purchase price. The attempted rescission was because of alleged misrepresentations made by tbe appellants to the respondent to tbe effect that tbe automobile was a 1919 model, whereas it was in fact a newly painted 1917 model. The trial court found that, before tbe purchase, tbe appellants represented to respondent that tbe automobile was a 1919 model, while, as a matter of fact, it was either a 1917 or 1918 model, probably tbe former year, that tbe respondent rebed upon these misrepresentations and because thereof entered into tbe contract of purchase, and that, upon learning that tbe representation was false, be returned tbe car to the appellants and demanded tbe amount be bad paid on tbe purchase price, to wit, $325. Based upon these findings, tbe court rescinded tbe contract and entered judgment for tbe respondent in tbe amount of tbe purchase price paid.

We cannot agree with appellants’ contention that tbe complaint fails to state a cause of action, or, if it did, that it was for breach of warranty rather than for rescission. Tbe complaint was one in tbe usual form of rescission and was not one seeking damages because of tbe breach of a warranty. It is too well settled to need citation of cases that one who has been induced to enter into a contract of purchase because of false representations of another may rescind and recover whatever amount be shall have paid.

What we have said also answers appellant’s contention that tbe oral evidence tending to show tbe misrepresentation was inadmissible because it tended to vary or add to tbe terms of a written contract. This is not a suit on tbe contract but to set it aside, and tbe doctrine contended for is inapplicable.

Tbe testimony as to whether tbe representations alleged to have been made were in fact made is contradictory. Tbe respondent and bis wife each testified positively that they were made, while one of the appellants and one of their salesmen testified exactly to the contrary. The witnesses were before the court and he was in a better position than we to determine their credibility. At the close of the testimony, he explained in detail why he believed the testimony of the respondents rather than that of the appellants. A reading of the evidence fails to convince us that the findings are against the weight of the testimony.

There is some contention that the respondent did not act with diligence in seeking to rescind. The testimony shows that he had the car for some months before he learned that it was not a 1919 model, and that within thirty days after he obtained this information he returned it to the appellants and demanded his money. There was no unusual delay. The judgment is affirmed.

Main, C. J., Fullerton, Mitchell, and Pemberton, JJ., concur.