239 P. 70 | Cal. Ct. App. | 1925
The complaint in this action alleged that on September 21, 1920, the defendant was engaged in the business of selling automobile trucks and automobile trailers in the city of Long Beach, California; that on said date the defendant, through his authorized agent, entered into a contract in writing with the plaintiff, by the terms of which the defendant agreed to sell to plaintiff one Utility trailer, tires *702 and body. Said complaint consisted of three separate causes of action, in each of which the alleged written instrument was embraced. It was further alleged that on or about October 5, 1920, the parties supplemented said contract by a further instrument in writing; that the trailer was delivered to the plaintiff, and that he began to use the same, but that it commenced to break down; that the defendant agreed to repair the same, but that it continued breaking down on an average of twice a week, and that the plaintiff finally returned said vehicle to the defendant, notified him that it was not suited to plaintiff's business, and had not given satisfaction as it was guaranteed to do, and demanded the return of $1,024.40 which had been paid on account of the purchase price thereof; that no part of said sum had been refunded, and that the same was due and owing from the defendant to the plaintiff. In the second count the principal allegations of the first count were repeated, with a further allegation that said trailer had become wholly useless, that it was returned, that the consideration for the execution of the contract failed in part before being rendered to plaintiff. In said second count it is also averred that "said contract mentioned in paragraphs two and three was rescinded by plaintiff on or about the 17th day of December, 1920; that plaintiff has returned to defendant the Utility Trailer and everything of value received by reason of said contract." In the third count it is averred that "the parties hereto mutually agreed to rescind said contract contained in paragraphs two and three"; it is then alleged that said trailer and everything of value received from the defendant was returned to him, and said amount demanded. In each of the last two counts it is alleged, as in the first, that the breaking of said vehicle was not the fault of the plaintiff.
No demurrer was filed by the defendant. He answered, admitting the execution of the contract but denying that there was any warranty or guaranty, or that the trailer broke down; and denying that the consideration had failed; the defendant further denied that said parties mutually agreed to rescind, or that they did rescind, said contract.
The case went to trial before the court without a jury; findings were waived and judgment was rendered for the plaintiff, specially reciting that: "the contract mentioned *703 in plaintiff's complaint was rescinded on the 17th day of December, 1921, and that the plaintiff do have and recover from the defendant" the amount demanded.
This appeal is brought up on the judgment-roll alone, upon the sole contention that no count of said complaint states facts sufficient to constitute a cause of action. Appellant cites authorities to support his claim that the extent of a warranty is limited to the language of the contract, and that the buyer in bringing suit upon an alleged warranty must aver that he relied thereon, in order to maintain an action for breach. It is further contended that the complaint did not sufficiently allege a mutual rescission, but that the allegations thereof constituted "purely a conclusion of law unless the terms of the agreement to rescind are alleged."
[1] If the contract was mutually rescinded, as found by the court below, and as alleged in the second count, and if the rescission was sufficiently pleaded by the plaintiff in said count, it must follow that it is immaterial whether or not the trailer was sold upon a warranty, or was defective, If the parties in fact canceled their contract and everything of value was returned to the defendant in pursuance of such cancellation, it would be his legal duty to refund whatever consideration he may have received therefor, and the judgment of the trial court should be affirmed. The plaintiff alleged that the parties mutually rescinded the contract, and that everything of value received from the defendant was returned to him; these allegations were denied by the defendant, but upon the introduction of oral and documentary evidence the court adjudged and decreed that the contract mentioned in plaintiff's complaint was rescinded — extinguished. [2] Findings having been waived, all the issues made by the pleadings are presumed to have been found in favor of the successful party. (Antonelle v. Board ofC.H. Commrs.,
[3] The complaint having alleged the contract in haecverba, together with the additional facts that the trailer was returned to defendant and demand made by the plaintiff for moneys paid on account, the allegation that the parties to the agreement rescinded was not a conclusion, but it was a statement of ultimate fact. "Rescission is a fact." (Seanor v. Bierer,
The facts alleged in the second count are sufficient as a pleading for the purposes of the action in the absence of a special demurrer.
The judgment is affirmed.
Finlayson, P.J., and Works, J., concurred.