218 Mich. 25 | Mich. | 1922
The plaintiff, a real estate dealer in Detroit, visited the automobile show in that city in January, 1918. He there saw an Abbott touring car, specially painted, in the exhibit of the defendant, who was distributor of that make of car, then manufactured in Cleveland. Plaintiff concluded to purchase the car, if he could turn in an old Studebaker car he had as a part of the purchase price. He claims his attention was called to some spots of mud on the bottom of the
“ T have an old car and I don’t want your old car. I paid the price for a new car and I would rather have my money back. I don’t want to pay that money for an old car.’ He says: ‘What are you talking about? I sold you a new car, and this is a new car.’ I said, ‘You stand on what you said?’ and he said ‘Absolutely.’ ”
Leo N. Orton, who accompanied plaintiff, testified as to what was then said:
“Mr. Kawecki said, ‘You sold me a second-hand car. I did not pay you money for a second-hand car, I don’t want that car, I want the money back and the car is in my garage and you can get it.’ And Mr. Stuber wanted to laugh, and he said, ‘I sold you a new car and not a second-hand one. I know nothing about it, about the foolish talk you are talking about.’ And Mr. Kawecki was excited and walked out and we were not there only about five or six minutes.”
“I don’t recollect in detail the conversation had with him on that occasion. My recollection is that he came into the office and claimed that he had discovered he had a car that had been used. I don’t remember, and I don’t believe he ever made a demand. He just made a statement or claim and walked right out again. I don’t think he came in more than a minute or so.”
And further:
“Q. Do you deny that he said that he wanted the car — he wanted you to take the car back and you could have the car?
“A. No.
“Q. And he wanted his money back?
“A. No, I will not deny it.”
The plaintiff soon after began suit to recover the amount paid by him and the value of his old car, and had verdict and judgment for $1,401.88. After suit was begun, the car in question was taken and disposed of by the security company under its chattel mortgage. The defendant insisted that the car sold plaintiff was a'new car. This issue was fairly presented to the jury, who found with plaintiff.
*29 “(1) Where there is a breach of warranty by the seller, the buyer may, at his election: * * *
“(d) Rescind the contract to sell or the sale, and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. * * *
“ (4) Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price or any part thereof has already been paid, the seller shall be liable to repay so much thereof as has been paid, concurrently with the return of the goods, or immediately after an offer to return the goods in exchange for repayment of the price.”
The question is whether plaintiff’s proofs show a compliance therewith. We think the testimony heretofore quoted, which is substantially all that was said about it, fairly establishes the fact that plaintiff as soon as he was satisfied that the car delivered to him was a used car, offered to return the car and demanded the payment of what he had paid on the purchase price. In view of the defendant’s insistence that the car was as represented and his statement—
“I sold you a new car and not a second-hand one. I know nothing about it, about the foolish talk you are talking about”—
we think the jury might well have found that the physical tender back of the car would have been an idle ceremony. The rule is thus stated in 24 R. C. L. p. 293:
“If he would rescind the contract, he must return or tender back the goods to the seller at the place of delivery, unless on making the offer so to do he is relieved of the obligation by a refusal to receive them if tendered. An offer to return, where it is refused, answers the same purpose as an actual return, provided the property is retained for the benefit of the seller whenever he may choose to receive it.”
Defendant further insists that the price at which the Studebaker car was taken was but a trading value and' not conclusive evidence of its real value and that they should have been permitted to show its actual value. We find no offer to make such proof in the record.
The judgment is affirmed.