Conlin v. Studebaker Brothers

SLOSS, J.

Plaintiff alleged in his complaint that the defendants had sold him an electric automobile, for which he had paid one thousand seven hundred dollars as follows: Three hundred dollars in cash and a note for three hundred dollars to the defendant, Studebaker Brothers Company of California, and 204 shares of stock of the Peerless Brick and Artificial Stone Company, of the agreed value of one thousand, one hundred dollars, transferred to the defendant Dresbach. It was alleged that the defendants had falsely represented that the automobile was new and in first-class condition; that the plaintiff, upon learning that the machine was, in fact, old and in poor condition, had notified the defendants that he rescinded his contract, and demanded the return of the consideration paid by him, offering to return the automobile. The demand and offer being refused, he brought this action. The defendants answered, denying many of the allegations of the complaint, and filed a cross-complaint alleging that the automobile" had been put in the hands of the plaintiff under a contract of conditional sale, under which title was to remain in the Studebaker Brothers Company until the note for three hundred dollars was paid. The plaintiff having refused payment of said note, the cross-complainants demanded judgment for the recovery of the automobile, or its value, fixed at one thousand seven hundred dollars.

The court found in favor of plaintiff’s allegations regarding fraud and rescission. It found that the title was not to re

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main in the Studebaker Brothers Company until the note was paid, and that said company was not-the owner of the automobile, or entitled to the possession thereof, “except on the rescission of the contract with plaintiff.” An amendment to plaintiff’s complaint, filed after the findings were made, alleges that the 204 shares of stock transferred to the defendant Dresbach had become valueless through no fault of the plaintiff. There is no finding on this allegation. The judgment was that plaintiff’s promissory note for three hundred dollars be returned to him, and that he have judgment against both defendants for the three hundred dollars paid by him and for one thousand one hundred dollars, the agreed value of the 204 shares of stock. The defendants appeal from the judgment and from an order denying their motion for a new trial.