Mettler v. Vance

SHAW, J.

This is an appeal by defendants from a judgment rendered in favor of plaintiff, and from an order denying their motion for a new trial.

As alleged in the complaint, plaintiff and defendants, on October 4, 1912, entered into a written contract whereby the latter agreed to sell and deliver to plaintiff, within thirty days from said date, an automobile described therein as a Model No. 22, 40 h. p., Marquette roadster, the agreed price of which, with extra equipment, was fixed at $3,223.50, upon which price defendants allowed plaintiff the sum ‘ ‘ of $723.50 for advertising,” and seven hundred dollars for a Wescott automobile owned by him and which he then and there transferred and delivered to defendants, and also paid them one hundred dollars in cash, all of which sums were by defendants acknowledged as being received and applied upon the purchase price of the Marquette roadster sold and agreed to

[500]

be by defendants delivered to plaintiff. By the terms of the agreement plaintiff agreed to pay to defendants the balance of the purchase price of said car, namely, one thousand seven hundred dollars, when the Marquette roadster should be delivered to him. Defendants neglected and refused to deliver the Marquette roadster as agreed; whereupon plaintiff, on November 6th, demanded the return to him within three days of the Wescott car, together with the one hundred dollars in cash, transferred and paid on account of said purchase price, which demand was refused. Thereupon plaintiff brought this suit, praying for a rescission of the contract, and the return of the Wescott car and the one hundred dollars so transferred and paid to defendants.

While inartificially drawn, we are of opinion the complaint, the substance of which is stated, was sufficient as against the general demurrer interposed by defendants. The result of defendants’ refusal to deliver the car in accordance with the contract constituted a failure of the consideration upon which plaintiff delivered the Wescott car to them. (Civ. Code, sec. 1689, subd. 2.) Moreover, a rescission on the part of defendants was implied by their refusal to comply with the contract, in which plaintiff acquiesced, thus effecting a rescission by consent.

(Cromwell