192 Iowa 1038 | Iowa | 1922
It is the claim of the plaintiff that the Master truck was unsatisfactory for graveling roads and for this reason it was returned to the defendants, who subsequently sold it, and as contended by the defendants under the sale clause of a mortgage that was executed by plaintiff on the truck at the time the second deal was consummated.
The primary question presented by this appeal is whether or not there was a rescission of the contract. Incidental to this question, did the trial court err in striking the amendment to the1 answer of the defendants in which it is alleged that ‘ ‘ after plaintiff had voluntarily returned said truck to the defendants and had specifically told the defendants that he relinquished any further claim on said truck and refused to pay any further part of the purchase price thereof, that the defendants thereupon and
Plaintiff pleads in his petition that the contract was mutually rescinded. This the defendant denies in the answer thereto.
Plaintiff in his original petition predicates his rescission upon a breach of warranty on the sale of the truck. It is well settled that a purchaser may elect to keep the thing purchased and bring his action for damages on the warranty or rescind the contract by returning the thing and bring his action to recover what he has paid for it.
A reading of the petition and the amendments thereto discloses that the plaintiff based his recovery on rescission and seeks to recover that part of the purchase price paid by him. The plaintiff’s testimony, however, discloses that he had no intention to rescind at the time that he returned the truck to the vendor and no notice of intent to rescind, either oral or written, was thereafter given to the vendor.
Plaintiff’s testimony is as follows:'
“On December 3rd I took it (the truck) to Parkhurst, and said, ‘I would never pay a cent on the truck until he would fix it up.’ He said he would have his men fix it. * * * It was the agreement with both of these trucks that he was to have an opportunity to fix it; that was true also about the Master truck. I understand he was willing to fix it. I understand when I left the Master truck that Mr. Parkhurst was willing to make right anything that was wrong and it was my understanding that he was going to work and fix it up. * * * I never talked to Mr. Parkhurst'or Mr. Mason from the time I left the Master truck until shortly before this suit was brought. I believe I did in March the next spring. Q. Well, did you expect to get it back at that time or didn’t you? A. I expected to get it back sooner than that. It was not the agreement that he was to notify me.' I went by Parkhurst’s place probably a thousand times that winter but I never stopped to inquire what he had done about this car. When I took the Master truck back I did not have in mind to call the deal off. There was' no talk about rescinding the con
Parkhurst, manager of the defendant company testified:
“When Mr. Bringolf brought the truck back he said he was through with it. He named three things that were wrong,' — the heating, the brake and the carbureter and connections. I told him I would have any of those things made right. Q. What did he say to that? A. He said he wouldn’t keep the truck. From what he said I took it that he repudiated the contract and that is the reason I sold the truck to Mr. Millang. He never called to see about the truck or anything about it after that time. We fixed it up.”
The act of rescission is the unmaking of a contract, and arises by mutual consent, either expressed or implied. Plaintiff pleads a mutual rescission. It requires the same concurrence of minds as that which made the contract, and nothing short of this will suffice. The mere termination or cancellation of a contract by one party is not in legal effect a rescission. True, it is not necessary that a formal agreement or release is executed, and a rescission may result from a course of conduct of the parties which clearly indicates their mutual consent and an understanding that the contract is abrogated. The rescission of a contract has the legal effect of entitling each of the parties to be placed in statu quo as nearly as possible, and no rights accrue to either party under the terms or provisions of the contract so rescinded. There must be an intention to rescind.' A court is not privileged to impose by judicial fiat an agreement of rescission upon the parties when it appears there was in fact no such agreement.
The plaintiff in the instant case states that there was no rescission. Likewise does the defendant. This concludes and precludes further discussion on this subject. As bearing upon the proposition see, Pardoe v. Jones, 161 Iowa 426; Mortensen v. Frederickson Bros., 190 Iowa 832; Clark v. American Dev. & Min. Co., 28 Mont. 468 (72 Pac. 978).
It is for the jury to determine whether the truck was returned under a rescinded contract or as a matter of surrender pursuant to the terms of the mortgage. The court was in error in striking the amendment to the answer pleading essential and defensive matters. Wherefore this cause is — Reversed and remanded.