Green v. Darling

CRAIG, J.

The complaint in this action alleged that on September 21, 1920, the defendant was engaged in the business of selling automobile trucks and automobile trailers in the city of Long Beach, California; that on said date the defendant, through his authorized agent, entered into a contract in writing with the plaintiff, by the terms of which the defendant agreed to sell to plaintiff one Utility trailer, tires

[702]

and body. Said complaint consisted of three separate causes of action, in each of which the alleged written instrument was embraced. It was further alleged that on or about October 5, 1920, the parties supplemented said contract by a further instrument in writing; that the trailer was delivered to the plaintiff, and that he began to use the same, but that it commenced to break down; that the defendant agreed to repair the same, but that it continued breaking down on an average of twice a week, and that the plaintiff finally returned said vehicle to the defendant, notified him that it was not suited to plaintiff’s business, and had not given satisfaction as it was guaranteed to do, and demanded the return of $1,024.40 which had been paid on account of the purchase price thereof; that no part of said sum had been refunded, and that the same was due and owing from the defendant to the plaintiff. In the second count the principal allegations of the first count were repeated, with a further allegation that said trailer had become wholly useless, that it was returned, that the consideration for the execution of the contract failed in part before being rendered to plaintiff. In said second count it is also averred that “said contract mentioned in paragraphs two and three was rescinded by plaintiff on or about the 17th day of December, 1920; that plaintiff has returned to defendant the Utility Trailer and everything of value received by reason of said contract.” In the third count it is averred that “the parties hereto mutually agreed to rescind said contract contained in paragraphs two and three”; it is then alleged that said trailer and everything of value received from the defendant was returned to him, and said amount demanded. In each of the last two counts it is alleged, as in the first, that the breaking of said vehicle was not the fault of the plaintiff.

No demurrer was filed by the defendant. He answered, admitting the execution of the contract but denying that there was any warranty or guaranty, or that the trailer-broke down; and denying that the consideration had failed; the defendant further denied that said parties mutually agreed to rescind, or that they did rescind, said contract.