Greene v. Curtis Automobile Co.

144 Wis. 493 | Wis. | 1911

Siebeckee, .J.

The court found that Mr. Greene acted for tbe plaintiff Mrs. Greene in all of tbe transactions involved in tbe purchase of tbe automobile from tbe defendant company. Plaintiff contends that her agent bad no authority to deal with tbe defendant’s officers as be did in negotiating with them for repairs on tbe automobile, as specified in tbe written memorandum of September 1, 1906. Tbe evidence in tbe case justifies tbe inference that be acted within tbe scope of bis authority on this occasion and that his acts pertaining to such arrangements were authorized by and within tbe scope of his employment by the plaintiff.

The question then arises, Did tbe referee and court err, as claimed by tbe plaintiff, in holding that the acceptance by Mr. Greene of the defendant’s offer to make tbe repairs on the automobile upon the terms expressed in the writing of September 1,1906, constituted a waiver of any default by tbe company in furnishing an automobile that was not in as good a condition of repair and as capable of developing horse power as agreed in their contract of sale ? The court approved the findings of tbe referee, which were to tbe effect that tbe defendant represented to tbe agent of the plaintiff and stipulated that this car was in a good state of repair and efficiency and would develop eighteen horse power and that it would operate all right so as to be fit for the ordinary uses and purposes of an automobile. These findings are challenged by tbe respondent. The evidence satisfactorily shows that the representations were made and were understood by tbe parties as conditions upon which the car was purchased by the plaintiff. It appears that tbe agent, Mr. Greene, was unfamiliar with the mechanism of a machine and so informed the defendant’s representative with whom he negotiated for its purchase, and that he relied upon such representations respecting the condition, power, and fitness of the car. Under these circumstances such representations do not constitute mere expressions of opinions concerning the car and its uses, but were representations of facts pertaining to its character, condition, and usefulness, on which the plaintiff’s agent had a right to rely as a condition in making the purchase. They therefore became integral parts of the contract of sale. There is no serious dispute in the evidence but that the machine was defective in its mechanical parts and their operation and that it failed to develop the horse power called for by the contract of sale. The evidence is clear that the defendant’s representative so considered it. This is clearly shown by the repeated attempts to repair the defects and by the attempts of the. representatives to put it in such condition as to make it conform to the representations made by them. The finding that the car did not comply with the representations made to Mr. Greene is abundantly established by the evidence and furnished a good and sufficient basis for plaintiff to rescind the agreement.

The main question therefore is, Did the trial court err in holding that the transaction between the parties, culminating in the writing of September 1, 1906, amounted to an agreement by which the plaintiff’s agent waived the fraudulent representation as to its repair and the condition of the machine and the consequent breaches of the contract of sale,.and that the plaintiff was thus deprived of the right to rescind the contract, as she claims to have done the last time she and Mr. Greene attempted to use the car, and by the letter of September 17, 1906. It is undisputed that Mr. Greene had knowledge of the defects in the machine prior to September 1st, when he and the defendant’s agent arranged for the repairs specified in tbe writing of tbis date. The trial court considered that in view of the circumstances under which this arrangement was made it showed an intention to waive the right to rescind the sale for breach of the conditions of the agreement of purchase and to accept the machine.

In the light of the accompanying circumstances we are persuaded that the court erred in this regard. The foregoing statement of the evidence, as embodied in the referee’s findings, clearly tends to show that the agent, Mr. Greene, persistently declared to the defendant’s representatives that the machine must be put in as good a condition as called for by the contract of purchase and that he insisted on the right to return the machine unless it should be put in such condition. Defendant’s representatives on the various occasions up to September 1, 1906, when the complaints concerning the defects in the car were brought to their attention, promised to repair it and remedy the defects complained of. In the negotiations leading up to the memorandum of September 1, 1906, they were explicitly notified that the plaintiff refused to accept the car in its imperfect condition, and the defendant thereupon offered by this writing to make the repairs specified therein. It does not appear that the parties in this writing agreed that the plaintiff was thereby accepting the car as of that time and that she was waiving defendant’s defaults if it finally failed to make good the imperfect condition of the car, as required by the original contract of sale.

It is claimed that the provision, “If the above repairs do not make car right, will dispose of same,” shows that if the specified repairs did not remedy the defects, then it was to be disposed of as plaintiff’s property by the defendant for her. "Wherein does .this show that such disposition of the car was to be for the plaintiff ? It is not so written, and to so interpret this provision violates its evident intent, for it significantly provides, “If such repairs do not make car right,” then it is to be disposed of by the defendant. Obviously, such default referred to tbe original conditions of purchase, which defendant was attempting to “make right” by these repairs. Furthermore, all the surrounding facts and circumstances confirm the inference that the negotiation of September 1, 1906, was only one step in the course of dealing between the parties to put the car in condition to comply with the contract of sale. The transactions of which the writing of September 1st form a part clearly show such a purpose and negative the claim that the plaintiff thereby agreed to accept the machine and stipulated for these repairs'in addition to the conditions of purchase.

The evidence is conclusive that the car did not fulfil the conditions,.of the contract of sale when first delivered, and that at no time was it put in proper condition up to the time of the last trial in September when plaintiff and her agent declared the contract rescinded and demanded repayment of the purchase money. It is shown that the plaintiff had given the defendant ample opportunity to repair the defects and put the car in proper condition to comply with the contract of sale, that it failed to do so, and that she was entitled to rescind the sale at the time she last tried the car in September and when the letter of September II, 1906, was sent to the defendant. After such rescission no act of the defendant in rebuilding the car or any of its parts to make it conform to the conditions of the sale could be effective to bind the plaintiff. The plaintiff was entitled to judgment for recovery of the purchase money.

By the Oourt. — The judgment is reversed, and the cause remanded with directions to award the plaintiff judgment for the purchase price paid for the automobile, with interest.