Edison Fixture Co. v. Maccaferri

250 Mass. 460 | Mass. | 1925

Crosby, J.

This is an action to recover the balance of the purchase price of seven electrical fixtures, sold and delivered to the defendants under a written contract.

The defendant Penn testified that a salesman of the plaintiff showed him the fixture, which consisted of a “ globe bracket, and contained a bulb ”; that the salesman demonstrated the fixture and told that defendant that the bulb was a one hundred watt bulb, and that it would give just as much light as the one hundred and fifty watt light which the witness was then using in his store; that the witness later received the fixtures from the plaintiff and installed them, “ the fixtures corresponding in every particular to the one exhibited and demonstrated, and the defendant has used the fixtures and lights ever since that time and made the first payment on same, but no other payments were made.”

The defendants contend and offered evidence to show that the fixtures were equipped with one hundred and fifty watt bulbs, and that by reason of false representations of the plaintiff’s agent, they were induced to.make the contract. The contract contains the following recital: “ All verbal, or written agreements not mentioned in this contract are void.” The defendants seek to rescind the sale because of the alleged false representations. We need not decide whether the representations of the agent could be found to be ground for such rescission.

To entitle a buyer to rescind a sale, he must have notified the seller within a reasonable time of his election to rescind, and must return or offer to return the goods sold in substantially as good condition as they were in at the time when the property passed. This rule applies under the sales act, St. 1908, c. 237, § 69, cl. 3, now G. L. c. 106, § 58, cl. 3, and is in accord with the rule of the common law. Dorr v. Fisher, 1 Cush. 271, 274. Bassett v. Brown, 105 Mass. 551. Skillings v. Collins, 224 Mass. 275, 277. Loomis v. Pease, 234 Mass. 101, 107. Williston on Sales, §§ 610, 611. The undisputed evidence shows that the defendants have used the goods sold ever since the sale was made, and that no offer has been made to return them. In these circumstances, they cannot rescind the sale but are chargeable for the contract price.

The trial judge rightly allowed the plaintiff’s motion for a directed verdict in its favor.

Exceptions overruled.