This is аn appeal from the District Court of Cotton County. The parties will be referred tо in this Court as they appeared in the court below.
Plaintiff, Jack Copeland, dоing business as Copeland Equipment Company, brought this action against defendant, Walter Anderson, to recover for the rental value of a tractor owned by plаintiff which was in defendant’s possession for approximately two weeks.
The facts giving rise to this claim were for the most part undisputed. Defendant orally agreed tо purchase a used tractor from plaintiff for the sum of $475.00. For eleven days thereafter defendant attempted to borrow money to cover the purchase price but was unable to, and so advised plaintiff. Plaintiff asked defendant to rеturn the tractor, which was done within a few days. The only dispute appears to bе in that defendant says the sale was conditioned on defendant’s ability to borrow money to pay for it, while plaintiff says the sale was final and without conditions. In any event, both parties agree that the sale contract was rescinded when plaintiff asked that the tractor be returned.
The case was tried to a jury which returned a verdict for plaintiff in the amount of $50.00. Defendant’s motion for new trial was overruled and he appeals.
It appears from the facts that the parties instead of attempting to enforce such *1007 rights as they may have had under the sale cоntract, rescinded it. The parties were then in the same position as before the agreement was made, except that defendant had had the use of plaintiff’s tractor without paying for it. Under those circumstances the law would imply a contract for defendant to pay the reasonable rental value of thе tractor; otherwise defendant would be unjustly enriched.
In the first paragraph of thе syllabus in Piggee v. Mercy Hospital,
“Contracts implied by law, or more properly quasi or constructive contracts, are a class of obligations which are imposed or created by law without regard to the assent of the party bound, on the ground that they are dictated by reason and justice, and may be enforced by аn action ex contractu.”
Defendant contends that there cannot exist аt the same time an express contract and an implied contract betwеen the same parties covering the same subject matter. This statement of lаw is not applicable in the instant case for the reason that the subject matter of the express contract was a sale, whereas the subject mattеr of the contract implied in law was a rental. The case of Berry v. Barbour, Okl.,
Defendant further contends that the trial court’s instructions to the jury were erroneous. The instruction requested by defendant, however, covered contracts implied in fact. Such instruction was not applicable. In First Nat. Bank of Okmulgee v. Matloсk,
Affirmed.
The Court acknowledges the aid of Supernumerary Judge CLYDE M. FOL-LOWELL in the preparation of this opinion. After a tentative opinion was written, the cause was assigned to a Justice of this Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court.