Smith v. F. L. Moore Motor Truck Co.

JAMES, J.

Appeal from a judgment entered in favor of plaintiff.

The action was brought to enforce rescission of a contract for the purchase of an automobile truck. The making of the contract for the purchase of the truck and the terms thereof were not disputed by any evidence offered on either side. Plaintiff, together with T. J. Smith, his son, arranged for the purchase of a heavy truck from appellant Moore Motor Truck Company for a price in excess of four thousand dollars. As part payment on the purchase price, the Smiths

[431]

turned in an old truck at the agreed value of one thousand four hundred dollars, paid three hundred dollars in cash and gave notes for the balance of the purchase price. The truck was being manufactured, and when ready was taken out for use upon several consecutive days, after which it was returned to the Moore Company and later sold by it. The old truck received from the Smiths was also sold by the same company. About the facts just recited there was no dispute. The disputed point in the case, as argued on the appeal, is whether there was a mutual rescission or whether the Moore Company, to the obligations of which the Pacific Metal Products Company afterward succeeded, in taking back the truck and reselling the same did so as the agent only of the Smiths. This proposition rests wholly upon the determination of facts other than those hereinbefore related, and about which there was a very clear and unequivocal conflict in the evidence. As to such a case and a proposition so affected, it is hardly necessary to declare that the appellate courts have no function by way of review. The testimony offered by the Smiths was that the truck when sent out of the shop to them was. sent out in charge of an operator employed by the manufacturer, the Moore Company, and that during the few days that it was used on work it was handled by the employee of the Moore Company; that defects of several kinds developed and that the machine did not work satisfactory; that upon representation of the conditions to the manager of the company mentioned, he told them that he would take the truck back and return to them their property; that he stated that the truck as contracted for by them had not been injured by use, that it was new and that he could dispose of it, and that there could be no depreciation charge; that later, when they requested that there be restored to them the property and money which they had paid and their promissory notes, the demand was met by a refusal; whereupon this action was brought. It was shown in evidence that after the alleged return of the truck to the manufacturer, one of the Smiths inserted an advertisement in a newspaper, offering the truck for sale over his own name, setting forth as a reason that illness compelled the sale. The insertion of this advertisement was admitted by the Smiths, but the explanation was offered that Mr. Moore requested that that be done to assist in the resale of the truck. We can find no ground to justify