223 P. 939 | Or. | 1924
“This being a suit to rescind on the ground that the plaintiffs did not obtain that for which they contracted, the. relative values of the two kinds of orchards are of no moment. If the plaintiffs had chosen to bring an action for damages instead of rescinding the agreement, and it could have been shown that an orchard of Spitzenbergs was worth as much or more than one of Rome Beauties, the defendant would necessarily prevail. It is a platitude of law to say that when a person contracts to purchase a certain thing, he is entitled to that specified article. In a suit to rescind, therefore, it does not lie in the mouth of the defendant to say to the plaintiff: ‘True enough, you did not obtain that for which you sought, yet we have given you something just as good and you have no right to rescind.’ Pennington v. Roberge, 122 Minn. 295 (142 N. W. 710); Mather v. Barnes (C. C.), 146 Fed. 1000.”
In this case it may be entirely possible, though not probable, that a Grant car of 1920 model is just as good, or better, than a 1921 model; but plaintiff was entitled to have that which he contracted for, whether
It is also claimed that plaintiff waived these representations, if such were made, by entering into an additional contract about a week later, with full knowledge of the mistake or misrepresentation in regard to the model of the car. We do not think that this is borne out by a preponderance of the testimony.
Other misrepresentations are alleged and testified to by the plaintiff and in regard to these the testimony is somewhat contradictory and we are inclined to give weight to the findings of the circuit judge, who had the witnesses before him and was better capable than this court to appraise the value of their testimony.
The decree of the lower court is affirmed.
Affirmed.