California Stearns Co. v. Treadwell

[70]

THOMPSON, J.

An action was commenced by the plaintiff against defendants to recover from defendants $2,000 of the purchase price of a Stearns automobile, and judgment went for the defendants. A separate appeal was prosecuted by the plaintiff from that part of the judgment denying it relief. The defendants and appellants A. W. Treadwell and E'. L. Treadwell filed a cross-complaint alleging that at the time of their purchase of the Stearns automobile for the sum of $2,770 made up of $2,000 in cash and a used automobile valued at $770, that it was represented that the automobile being purchased was a 1922 model; that in truth it was not a 1922 model, but a 1921 model; that plaintiff was well aware of the fact that it was a 1921 model; that defendants and cross-complainants relied upon the representation and that by reason of its purchase due to such reliance and inducement, were damaged in the sum of $620 or the difference in the value and selling price of the two models. After the overruling of a general demurrer interposed by the plaintiff, it filed its answer to the cross-complaint in which it denied that the representation was falsely made with intent to deceive or that plaintiff relied thereon; denied that the selling price or the value of the car sold and delivered was $2,150 or other than $2,350, and denied that defendants were damaged in any sum in excess of $330. Responsive to these issues the court found that plaintiff falsely represented to the appellant A. W. Treadwell that the automobile was a 1922 model; that it was “a 1921 year model Stearns automobile remodeled and refitted so as to bring it up to 1922 specifications”; that while cross-complainants examined the automobile “they did not know that it had originally been a 1921 model; that the price for which plaintiff was selling said 1921 year model Stearns automobile, brought up to 1922 specifications,” and the value thereof, was $2,350; and that the price paid for the automobile by cross-complainants, aside from accessories and extras, was the sum of $2,350 and that cross-complainants had not been damaged in any sum. Judgment was entered for defendants upon the complaint and answer and for plaintiff and cross-defendant upon the cross-complaint and answer thereto. The appellants prosecute this appeal upon the judgment-roll alone

[71]