Hunt v. L. M. Field, Inc.

THE COURT.

This is an appeal by the defendant from a judgment rescinding and canceling a written contract. On

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February 28, 1922, and at divers times thereafter, the agents of the appellant company are alleged to have represented to i the respondent, among other things, that said company had ' \\ for sale a certain motor-truck and trailer; that said vehicles | were in good mechanical condition and available for imme- : diate delivery; that they carried with them a manufacturer’s

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warranty as to their proper construction and freedom from mechanical imperfection; and that the purchaser of said vehicles would be employed, on April 1, 1922, and for approximately eight months each year for a period of five years thereafter, by the La Honda Mill Company to haul at a fixed compensation certain of its lumber to distributing points. In addition to the foregoing, the complaint avers that each and all of said representations were, to the appellant’s knowledge and to the knowledge of its agents making the same, false and untrue and made solely for the purpose of defrauding the respondent and thereby inducing him to enter into and execute the written contract; that the respondent being ignorant of the falsity of said representations and in reliance thereon entered into said contract and paid the

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appellant thereunder the sum of one thousand dollars in part payment of the purchase price of said motor-truck and trailer; that respondent discovered the false character of said representations on April 14, 1922, and gave written notice of rescission to the appellant on April 29, 1922. A second cause of action for money had and received is also appropriately alleged in the complaint, the prayer of which asked that the contract be rescinded and canceled and that respondent be given judgment for the one thousand dollars theretofore paid thereunder. In its answer the appellant denied the material allegations of the complaint. The cause went to trial before the court with a jury sitting in an advisory capacity. A verdict was returned in favor of the respondent, whereupon the court made findings declaring all the allegations of the complaint to be true and those of the answer untrue. Upon these findings of fact judgment was entered as prayed for in the respondent’s complaint.