Atwood v. Shea

KNIGHT, J.

Appellant agreed to exchange a lot belonging to him for an automobile belonging to respondent, and after the deed to the lot had been executed and delivered to respondent, sought by this action to rescind the transaction upon the ground of fraud, it being claimed that respondent represented the automobile (a Buick) to be a 1926 model with standard gear shift, whereas it was a 1924 model and without a standard shift; also that he was inveigled into signing the exchange agreement and the deed upon the representation that the purpose of the documents was merely to allow respondent to search the title to the lot, and that he signed the documents without reading them. The trial court found against appellant on all of the foregoing issues and entered judgment accordingly in favor of respondent, from which this appeal is taken, it being contended that the evidence is insufficient to sustain the findings and that the findings do not support the judgment.

We find no merit in any of the foregoing points. The findings are based on conflicting evidence and there is ample testimony to sustain them. It appears therefrom that appellant, accompanied by one Skellenger, called at respondent’s office and stated that he wanted to trade a lot for an automobile; that he needed a car but was unable to buy one because he could not sell his lot. Respondent showed them a 1925 Buick sedan, which they examined and Skellenger told appellant it was a good car. About a week later appellant again called to examine the ear. At that time he was accompanied by two friends. They examined the ear and told appellant it was in good shape. Respondent then informed appellant that he would not make any deal until he had seen the lot, and on the following day the parties drove out to the lot in the car, which was driven by a friend of appellant’s named Rovelli, who also told appellant that the car was in good shape. According to respondent’s testimony appellant wanted to close the trade at that time. However, the parties met again a day or two afterward at the office of a Mr. Azarello, who drew the exchange agreement and the deed, which appellant signed. A

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few days later, after Azarello had received a report on the title to the lot, he delivered the deed to respondent; whereupon respondent forwarded to appellant the ownership slip for the automobile and requested him to take the automobile away. Instead of doing so appellant served notice of rescission. Furthermore respondent expressly denied having told appellant that the car was a 1926 model. In this regard he stated that while driving to the lot Rovelli asked him whether the car was a 1925 or 1926 model, and he replied it was a 1925. Azarello denied also having misrepresented anything concerning the nature of documents signed by appellant, stating in substance that appellant knew what he was signing. As indicated, the foregoing evidence is legally sufficient to sustain the trial court’s finding on the issues of fraud.