Alberti v. Jubb

PRESTON, J.

This is an action in equity for the rescission of a written agreement entered into between the parties for the sale by defendant and purchase by plaintiff of an electric violin piano for the sum of $1,600 and to obtain - cancellation .and surrender of forty promissory notes of $40 each executed by plaintiff and delivered to defendant to provide payment in monthly installments for said instrument.

The complaint was based upon allegations of false and fraudulent misrepresentations made by defendant seller as to the playing condition of said instrument. Upon, these grounds the trial court found in favor of defendant to the effect that the piano was at all times in the condition of an ordinary second-hand instrument' and was bought by plaintiff as such.

During the trial, however, plaintiff for the first time learned of the condition of title to the instrument, and was permitted by the court to file an amendment to his complaint alleging breach of implied warranty of title by the seller based upon facts substantially as follows, admitted in evidence over the objection of defendant: One Craine obtained possession of the instrument under a conditional sales contract between the Irvine Music Company and himself but title never passed from the company to him. With $1,400 still due the music company upon the purchase price of $1,650, said Craine dissolved a partnership which he had

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entered into with one Bartlett and allowed the piano to remain upon the partnership premises, which Bartlett continued to occupy, although said instrument was never considered partnership property. Still later defendant purchased it from Bartlett for $100, which amount was characterized as being about right for storage. Bartlett, however, took no steps to foreclose a lien, if any he had, on said instrument for storage and the rights of defendant were based solely upon his aforesaid purchase from Bartlett. Craine testified that until the trial of this action he was unaware that the piano had been sold to defendant and, as against everyone except the music company, he claimed to be entitled to possession of it under the aforesaid conditional sales agreement. .

Upon this issue the court found that defendant had falsely represented to plaintiff that he was the owner of and entitled to possession of said instrument and if plaintiff had not believed said representations, he would not have entered into said agreement with defendant. Judgment accordingly was entered canceling the agreement, declaring the notes void and ordering them to be surrendered and delivered to plaintiff. Defendant has appealed.