Nunziato v. Prout

The plaintiff commenced this action to rescind a contract, by the terms of which he agreed to purchase and the defendant agreed to sell certain machinery used in the manufacture of macaroni. The defendant denied the allegations of the amended complaint upon which the rescission of the contract was based, and by a cross-complaint set up two causes of action, one for the recovery of $4,500 for goods, wares and merchandise alleged to have been purchased by plaintiff from the defendant, and one to recover the sum of $1500 alleged to be due him for labor and materials furnished to plaintiff within two years last past. The plaintiff denied the allegations of the cross-complaint, and as a special defense set up the same facts alleged in the original complaint for a rescission of the contract. The court made findings of fact and conclusions of law, and entered its judgment that the plaintiff take nothing by his complaint, that the defendant take nothing by his cross-complaint, and that neither party was entitled to his costs. The defendant appeals from that portion of the judgment which provides "that plaintiff and cross-defendant is not indebted to defendant W.I. Prout, that defendant W.I. Prout take nothing by his cross-complaint, and that neither party is entitled to his costs herein." The appeal is upon the judgment-roll alone.

The court found the following facts alleged in plaintiff's amended complaint to be true: That, on or about the ninth day of February, 1925, plaintiff and defendant entered into an agreement wherein the defendant agreed to purchase and the defendant agreed to sell one double cylinder hydraulic *Page 575 macaroni press, one double cylinder horizontal short goods hydraulic macaroni press, and one kneading machine, as per specifications set forth in said agreement, and wherein plaintiff agreed to pay therefor the sum of $7,500; that at the time of entering into said agreement the defendant represented to the plaintiff that he was a manufacturer of macaroni machinery, and that he could manufacture the machinery described in the contract, and that he would make a first-class job; that plaintiff relied upon said representations, and believing them to be true, signed the contract and paid $3,000 on the contract price; that on January 30, 1926, plaintiff notified the defendant that he could not make either the macaroni presses or the kneading machine function according to their capacity provided in the contract, and notified the defendant to come to plaintiff's factory and place all three of said machines on a satisfactory working basis; that defendant agreed to do as requested provided plaintiff would send defendant transportation costs from Denver, Colorado, to Los Angeles, California; that plaintiff did send defendant $100, which was in excess of the sum required for transportation, as aforesaid; that defendant arrived in Los Angeles, February 26, 1926, and took full charge of all of said machinery for the purpose of putting it on a satisfactory working basis; that the two macaroni presses have never been put on a satisfactory working basis, and are not as represented by the defendant in the contract of purchase; that the kneading machine has been used by the plaintiff in its business since its delivery to plaintiff, and was so used after the notice of rescission; that on the sixth day of May, 1926, and as soon as plaintiff had ascertained that the representations were untrue, he tendered to defendant a duly executed notice of rescission of said agreement; and that defendant refused and still refuses to rescind said contract. The court further found that the plaintiff was not indebted to the defendant either upon the first or second count contained in his cross-complaint.