Stewart v. Hollingsworth

HARRISON, J.

It is alleged in the complaint herein that the defendant represented to the plaintiff that a certain street sweeping machine was in every respect first-class and well adapted for sweeping streets, and had been thoroughly tested as such and found satisfactory; that by reason of such representations the plaintiff was induced to enter into a contract with the defendant, whereby the defendant promised to sell the machine to him, and the plaintiff, as the consideration therefor, agreed to and did deliver to the defendant another street sweeping machine of the value of two hundred and twenty-five dollars, together with his written obligation to pay the defendant four hundred dollars, and that he had paid the sum of seventy-seven dollars and fifty cents thereon; that the said representations of the defendant were false and fraudulent, and were known by him to be such, and were made for the purpose of inducing the plaintiff to enter into said contract, and with the intention of defrauding and cheating the plaintiff; that as soon as the plaintiff ascertained that said representations were false he notified the defendant of his rescission of the contract, and offered to return to him all that he had received thereunder, and demanded the return of the machine delivered by him to the defendant, together with the aforesaid written obligation; that the defendant had taken possession of the machine received by the plaintiff, but had not returned the written obligation or the machine received by him from the plaintiff. Plaintiff thereupon asked judgment for the rescission of the contract, and that the written obligation be canceled and delivered to him, and that he be entitled to the possession of the machine delivered by him to defendant, and also for the sum of seventy-seven dollars and fifty cents. In his answer the defendant denied the greater part of the allegations of the complaint, and in addition thereto made a cross-complaint against the plaintiff to the effect that he had made a conditional sale of the machine to the plaintiff, by the terms of which the plaintiff was to pay four hundred dollars therefor in installments, and that until full payment thereof the title to the machine should remain in the defendant,,

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•and in the meantime the machine should he held hy the plaintiff in trust as security for the payment of said installments, and that in case of default in such payment the plaintiff would on request return the machine to the defendant; that the plaintiff did not pay said installments of money, or either of them, and that the defendant had taken possession of the machine and sold it for the account of the plaintiff for the sum of one hundred dollars. He thereupon asked judgment against the plaintiff for the sum of three hundred dollars. The cause was tried by the court and findings made that all the allegations in the •complaint were true, except that the value of the machine delivered by the plaintiff to the defendant was one hundred and seventy-five dollars instead of two hundred and twenty-five, and that there was no agreement between the parties by which the machine received by the plaintiff from thé defendant should be held by the plaintiff in trust or as security to the defendant for the payment of any sum of money whatever. Judgment was thereupon rendered in favor of the plaintiff and against the defendant for the sum of one hundred and seventy-five dollars, •and for the cancellation and delivery to the plaintiff of the written obligation given by him to the defendant, and that the defendant take nothing by his cross-complaint. The defendant has appealed from this judgment upon the judgment-roll alone, without any bill of exceptions.