2 N.W.2d 125 | Minn. | 1942
From the evidence in behalf of plaintiff the jury might have found that, in his dealings with defendant, plaintiff insisted on purchasing a car which had never been in a wreck; that defendant represented the car plaintiff subsequently bought as being in perfect condition and as never having been in an accident; and that it had been used by defendant as a demonstrator (defendant being a "subdealer"). Plaintiff turned in his old car at the agreed price of $175 and paid defendant $100 in cash at the time he accepted delivery of defendant's car. Later it developed that the car he purchased had been in an accident, considerably smashed up, and imperfectly repaired. The market value of the car was substantially impaired by the fact of its having been in an accident. When he discovered that the car had been in an accident, plaintiff demanded that defendant return his old car and his cash payment *13 and take the purchased car back. Defendant refused. Plaintiff then paid the balance of the price, and this action followed.
1. It was plaintiff's payment after he discovered the fraud which led the trial court, relying on Defiel v. Rosenberg,
2. The fact that plaintiff unsuccessfully sought rescission did not bar this action. Jones v. Magoon,
3. In view of a new trial, it should be said that the complaint alleged that the car was represented to be in perfect condition, whereas it was in imperfect condition. Consequently, in our view, evidence that it consumed inordinate quantities of oil was evidence of bad condition.
4. The jury might well have found that the deduction of ten dollars on the final payment was made pursuant to the original agreement and hence did not amount to an adjustment of differences barring this action.
Order reversed. *14