Hogan v. Anthony

WORKS, J.,

pro tem.

This is an appeal from the judgment and from an order denying a motion for a new trial.

On August 12, 1914, the appellants, by a writing which we shall hereafter, for convenience, call the contract, agreed to sell respondent an automobile truck for the sum of $1,650. Of this amount five hundred dollars was paid at the time, under a recital that it was paid as a deposit to apply upon the purchase price, and the remainder was agreed to be met in eleven monthly installments of one hundred dollars each and an additional installment, at the twelfth month, of fifty dollars. On the next day, the 13th, the parties entered into a lease of the car, Hogan being the lessee; and he executed notes to one of the appellants for the deferred payments mentioned in the contract. The lease recited that the sum of five hundred dollars had been paid down, provided for the making of the twelve deferred payments as rental, mentioned the notes as having been given of even date with it, declared them to be a part of the lease, fixed a term coincident with the running of the notes, and provided that Hogan might purchase the truck at the end of the term for a consideration of one dollar. The car was not delivered to Hogan until after the execution of the lease and notes, as his own testimony shows. It is also to be stated that the evidence of appellants shows that, at the time the contract was signed, there was an oral understanding between the parties that Hogan would on the next day execute notes to cover the deferred payments. This Hogan did not deny.

The action is to enforce a rescission. The amended complaint sets up the contract and alleges a delivery of the truck under it, alleges that the instrument was entered into by Hogan because of the misrepresentations of appellants concerning the capacity of the truck, that the lease and notes were executed without consideration, 'and that Hogan returned the truck upon discovering "the untruth of the representations. It also presents the other allegations necessary to the complete statement of such a cause of action, and demands judgment for a return of the money and of the notes. The trial court found with respondent, and rendered judgment accordingly.

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The appellants contend that various of the findings are not supported by the evidence, but, so far as the points presented by them in that regard are necessary to be discussed in this opinion, the position of the appellants may be summarized thus: They insist that the attempted rescission of the contract can boot the respondent nothing, for the reason that the instrument did not evidence the final agreement between the parties, but that their respective obligations must be measured by the terms of the lease.