No. 22228 | Neb. | Apr 10, 1923
This is an action by the purchaser of a tractor to re
It is argued that the judgment is not sustained by sufficient evidence, that plaintiff failed to prove either a prompt return of the tractor or a rejected offer to return it and that therefore he was not entitled to recover back the purchase price. The letters from defendants to plaintiff contained misrepresentations of material facts. This is shown by testimony of defendants themselves. They wrote letters representing: “We have had this engine on hand for just one year, and have used it for demonstration work and Avould say it has not ploAved ten acres of ground. It is in A No. 1 condition.” “Here is a big bargain if taken at once.” “We consider this engine as good as new Avith the exceptions of demonstration work that we have done.” “You will find what we have told you is right.” The truth is it was a second-hand tractor. Defendants ordered it in 1916. They had it on hand at least two years. In the meantime they sold it to
Did plaintiff lose his right to rescind the sale by failing to act promptly in returning the tractor or in making a rejected offer to return it? ' He unloaded the tractor April 19, 1919. Thereafter he tried to make it work and requested instructions upon discovering latent defects. He also demanded the replacement of broken parts. As early as May 30, 1919, he wrote, and defendants received, a letter saying:
“I will return your engine and load it on the cars and you refund my money.”
In a reply defendant said:
“We do not believe, Mr. Murray, you would be interested in loading that tractor onto the cars, as it would be necessary to establish a fact that the tractor was not fulfilling the manufacturer’s guarantee.”
This was not the first time defendants had used the word's, “would be interested.” In reply to a former letter
The admission in evidence of two letters which plaintiff received by mail from the manufacturer of the tractor is also assigned as error. It is argued that these letters did not come from defendants, that the latter are not: bound by them, and that they were admitted without the laying of a proper foundation. From the evidence as a whole the following facts or conclusions are inferable: The letters show that the tractor was sold by the manufacturer in 1916, through the agency of defendants, to a farmer residing near Ord. This, in connection with other evidence, disproves the representation by defendants that they had the tractor on hand just one year for demonstration work. Plaintiff received the first of these two letters in due course of mail in reply to a letter mailed by him to defendants, complaining about the tractor and requesting supplies to replace broken parts. The second letter to which objection was made was likewise received by plaintiff in i'eply to a letter on the same subject, which had been mailed by him to the manufacturer in response to the first of the two letters. Defendants referred the subject-matter of the correspondence to the manufacturer and took the initiative in prompting the letters from that source. The evidential facts shown by these letters, to which objections were made, were proved outside of the letters. The genuineness of the letters is not disputed. If the foundation was not properly laid in the first instance, it was supplied by subsequent testimony. The circumstances dis
With the principal questions determined in favor of plaintiff, no prejudicial error has been found in other rulings on evidence or in the giving or refusing of instructions.
Affirmed.