74 Wis. 638 | Wis. | 1889
The law is that if, on the sale of property, the vendor knowingly makes any false representation to the vendee affecting the character or quality of the article sold, upon -which the vendee relies and upon the faith of which he purchases, such vendee may (if he do so within a reasonable time) rescind the purchase by offering to return the property so purchased and demanding a return of the consideration paid therefor. Potter v. Taggart, 54 Wis. 395, and cases cited. The same right of rescission obtains, in certain cases, for a breach of warranty unaccompanied by fraud. Boothby v. Scales, 27 Wis. 626, and cases cited; Paige v. McMillan, 41 Wis. 337. But the latter rule has no application to this case, for the action is founded upon the alleged fraudulent representations made by the defendant.
The testimony tends to show that the defendant represented to plaintiff that the piano had been in use not more than six months or a year, and was as good as a new instrument, when in fact it was fifteen or twenty years old,
1. It is claimed on the authority of Potter v. Taggart, 54 Wis. 395, that the motion of the defendant for a nonsuit, made at the close of plaintiff’s testimony, Should have been granted, because there was no proof that plaintiff was in a condition, at the time of the trial, to return the piano. The testimony tends to show that after the defendant had proposed to sell the plaintiff the piano, but before she had decided to purchase it or any piano, the defendant took the instrument to her house without her consent or any request by her that he should do so, and was allowed to leave it on trial. Two days afterwards she concluded to purchase it, and did so, paying the consideration therefor. It was proved on the trial that the instrument was still there down to the week of. the trial, and there is no suggestion that it has ever been removed. The presumption is that it still remains there for the defendant. Thus the proofs meet the requirement pf the rule.. -
2. The plaintiff testified that she had used the piano a little, as she had occasion, down to the time of trial. It is claimed that such use thereof is inconsistent with a rescission of the contract of purchase, and hence that her offer to return the instrument is nugatory. Such use may or may not be inconsistent with a rescission of the contract. Were we deciding the question of fact, inasmuch as the
S. Counsel for defendant maintain (correctly, no doubt) that a contract cannot be affirmed in part and rescinded in part. We do not see what bearing the rule has in this case, for the whole contract was rescinded. It is supposed, however, that the rule is invoked because the result of the judgment is to leave the defendant the owner of the organ, as well as of the piano. That is his own fault. Had he surrendered the organ when demanded, it would now belong to the plaintiff. By refusing so to surrender it, he made himself liable for the value of it in money, and thus made the organ his own, at the option of the plaintiff.
It may here be observed that the plaintiff testified the organ belonged to her mother, but it appears that she traded it to the defendant with her mother's consent. As between the parties to this action, therefore, the plaintiff was the owner of the organ. Her recovery of its value in this action is a bar to any claim of her mother upon the defendant in respect thereto.
4. Defendant further testified on the trial that, at a certain time when he was trying to sell the piano to plaintiff, he showed her his books and bills, in which it appeared
5. Certain exceptions are taken to portions of the charge to the jury. Hone of them are well taken. The charge is a clear and accurate statement of the law of the case as above laid down. It is unnecessary to insert it in the report of the case, or to make further reference to it.
6. Counsel objected to a clause in the judgment giving the defendant the right to remove the piano from the residence of the plaintiff. The clause is surplusage. The piano is the defendant’s property, or will be when he pays the judgment herein, and he then will have the right to take it wherever he finds it, without any provision to that effect in the judgment. Yet the provision is in his favor, and hence it furnishes no valid ground for exception on his part.
There are no other exceptions which require special notice. Finding no material error in the rulings of the court, we must affirm the judgment.
By the Court.— Judgment affirmed.