Boland v. Smith

JAMES, J.

Carlin G. Smith brought this action to enforce rescission of a contract for the purchase of an automobile. Judgment was awarded in accordance with the prayer of the complaint, and defendants appeal. (After judgment there was a substitution of parties plaintiff by reason of an assignment made by plaintiff Carlin G. Smith to Boland.)

[405]

On June 12, 1912, plaintiff Smith negotiated with defendant Stanley W. Smith and C. F. Smith, since deceased, for the purchase of an automobile, and on that date paid a deposit of five hundred dollars. A written contract in the form of a memorandum order was drawn up and signed by the purchaser and the vendors. The automobile was not at the time in the hands of the vendors ready for delivery, but was to be shipped from the factory at an eastern point, and the written contract provided that the delivery was to be made “on or about out of first shipment of this model.” The signature of the plaintiff first appeared attached to the order, and over the signature of the vendors was the following clause: “We agree to fulfill all the terms and conditions of this order, subject to delay resulting from fires, strikes, action of elements, and other circumstances beyond our control.” No delivery of the car having been made, on the 25th of November, 1912, the plaintiff served a written notice of rescission upon the vendors and demanded the return to him of the five hundred dollars deposited. The court, in its findings of fact, recited that defendants had represented to plaintiff that they had several shipments of models of the kind of car desired coming and that the first shipment would reach Los Angeles on or about the first day of July; that the defendants failed to make delivery of the car on July 1st, but stated to plaintiff that shipment had been delayed and that the car would be shortly delivered, and at various times between July 1st and October 17, 1912, the vendors represented and stated that shipment of said car would shortly be made; that on the seventeenth day of October thé vendors specifically promised and agreed to make delivery of the ear not later than three weeks from that date, to wit, not later than November 17, 1912; that the vendors received a shipment of the model of the ear contracted to be delivered on or about the twenty-fifth day of December, and on the 26th of that month notified the plaintiff of the receipt of the car and offered to make delivery thereof. The court further found “that defendants have wholly refused and failed to make delivery of any car under the terms of their contract with the plaintiff within a reasonable time, and have failed and refused to return to plaintiff the sum of five hundred dollars.”