Perry v. Magee

NOURSE, P. J.

On October 3, 1949, Perry (plaintiff, cross-defendant and respondent) entered into a conditional sales contract with Magee (defendant, cross-complainant and appellant) for the purchase of the Magee Poster Drier for $5,098.50—$3,300 down payment and $158.51 to be paid in 11 monthly installments beginning December 1, 1949. On March 3, 1950, Perry through his attorney notified Magee by letter he was rescinding the contract upon the ground of misrepresentation and breach of warranty of quality, offering to return the machine upon the condition that his money be refunded. Defendant did not act and on May 18, 1950, plaintiff filed his complaint pleading six causes of action, the first and fourth being dismissed by plaintiff at the trial. The remaining causes are:

(2) Damages sought for breach of oral warranties allegedly made by defendant. (3) Damages for alleged oral fraudulent representations made by defendant. (5) Rescission of written contract sought for breach of oral warranties allegedly made by defendant. (6) Rescission of written contract sought for alleged fraudulent representations made by defendant.

Because of the written waiver of oral warranties plaintiff would be limited to his action for rescission without damages for alleged fraud under the rule of

Speck

v.

Wylie,

1 Cal.2d 625 [36 P.2d 618]. Hence, this appeal should be properly limited to the issue of rescission raised in the fifth

[157]

and sixth causes of action. But more definitely it should be limited to the fifth cause—for rescission of the contract because of breach of oral warranties—since the sixth cause which was based on fraudulent representations is not supported by the slightest evidence of fraud.

Plaintiff on the entire complaint sought judgment against defendant for $11,304.51 plus 7 per cent interest oh said sum from March 3, 1950, the date of rescission. Defendant’s demurrer was overruled and on June 16,1950, he filed his answer and cross-complaint denying all material allegations of plaintiff’s complaint and cross-complained for breach of the written contract, asking for the return of the machine, retention of moneys previously paid by plaintiff and attorneys’ fees. June 25, 1951, the court entered its minute order rendering judgment for plaintiff and thereafter filed its findings and entered judgment July 9th, declaring the contract null and void and granting plaintiff recovery of the money paid to defendant on the contract with 7 per cent interest from March 3, 1950.