Wardlow v. Sanderson

LENNON, J.

This case is here on rehearing after judgment of the district court of appeal of the second district, division one, reversing a judgment made and entered by the trial court in favor of the plaintiff. The court of appeal concluded, and accordingly adjudged, that the judgment against the defendants could not be sustained, upon the theory that there had been a rescission of the first contract entered into between the plaintiff and the defendants and

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which was the basis of the plaintiff’s cause of action. The conclusion of the court of appeal in this behalf was made and based upon the theory that the evidence adduced upon the entire case in the court below did not warrant nor support a finding that there had been a rescission of the contract referred to. At first blush it did not appear to us why said contract, even under the facts narrated in the opinion of the court of appeal was not rescinded. A rehearing was granted primarily for the purpose of ascertaining the state of the evidence upon the subject of the rescission of the first contract, and now, after a careful consideration of the record, we are constrained to the conclusion that the court of appeal was correct in its statement of the facts and its application of the law, and, accordingly, the opinion of Mr. Presiding Justice Conrey is hereby adopted and made the opinion of this court, as follows:

“On or about April 1, 1919, appellants, in consideration of the sum of $1,545 paid by respondent to appellants, sold and delivered to respondent one certain model S-25 Samson tractor. This tractor was equipped with a defective motor, and by reason thereof would not perform the work for which it was sold; that is to say, respondent purchased the tractor for use in her orange grove, and the fact that it was purchased for this purpose was known to appellants at the time of the sale. Respondent kept the tractor and endeavored to use it until the following November. From time to time appellants attempted to remedy the defects, but without success. Appellants were not the manufacturers of the tractor, but were engaged in the business of selling such tractors. Respondent did not attempt to rescind the sale, and did not bring any action for damages for any alleged breach of the contract of sale. On the 7th day of November, 1919, respondent and appellants entered into a contract, the material part of which is as follows: ‘We agree to sell Mr. Wardlow one 30-X Samson tractor to be delivered as soon as possible for his S-25 and $400.’ The Mr. Wardlow mentioned in this contract is the son of respondent, and it is admitted that he represented her in the transaction. At, the same time, and in part performance of this agreement, the S-25 was delivered by respondent to appellants. About thirty days later, with the consent of appellants, respondent by her said agent, rescinded the con