183 Iowa 226 | Iowa | 1918
“I made him (T. O. Mathers) a present of the machine. Q. When did you make him a present of it?< A. The moment it came. Q. Who was there when you made this gift? A. We were. I wanted him to have a good one. * * *”
Redirect examination: “Q. In regard to this present, had you talked with Ted about making him a present? A. Yes, sir, — that is, I wanted it at the end-of July. Q. His birthday? A. Yes, sir, I wanted it for his birthday.”
T. C. Mathers testified:
“I knew I was going to get it (automobile) for a birthday present, the day Mr. Waliston drove it down. I knew it before the day that Mr. Bennett and Waliston came down. That was the time my wife told me that she was going to give me the present of the automobile. Q. When did she present it to you?1 A. The second day of August. Q. •You never complained to her afterwards about the kind of gift she made, did you ? A. No, sir.”
On the former appeal, we held that the evidence of rescission by defendants as joint purchasers was sufficient to carry such issue to the jury. The evidence quoted above was brought out on the last trial, and we are satisfied that, though it demonstrates that Mrs. Mathers only might -rescind, it falls short of showing that she did anything essential to accomplish that purpose. For this reason, a verdict might well have been directed against defendants.
III. The contention that defendants are estopped from rescinding by reason of T. C. Mathers’ exercising dominion over the automobile after he knew it was not complying with the warranty, is disposed of by what we have said. Other suggestions of error not argued require no attention. —Reversed.