111 Wash. 650 | Wash. | 1920
The two above entitled cases were consolidated in the superior court and tried as one action. The subject-matter of the litigation was a motor truck. In one of the cases, the plaintiffs were seeking to rescind the contract of purchase and recover their money back. In the other, the seller was attempting to foreclose a lien for labor performed upon the truck. The trial court sustained the right of rescission and entered a judgment accordingly. From this judgment, the Garford Motor Truck Company appeals. The controlling facts are not in material dispute.
On May 26, 1918, Fred Noel, one of the respondents, then residing at Yakima, came to Seattle and contracted for the purchase of a Garford motor truck. The truck purchased was at the time en route from the factory to Seattle. It arrived- shortly before June 19, and was taken to the shop of the Commercial Garage to have a certain type of body placed on the chassis. On June 19, Fred Noel came again to Seattle, went to the Commercial Garage, received the truck and drove it to the Garford Company’s place of business, some blocks distant in the same city. During this trip up town, there were several grades, and the motor, when it arrived at the Garford place, was heated to such extent that it stalled. The workmen of the Garford company spent most of the afternoon checking up the motor, and Noel left late in the afternoon to drive the truck to Yakima. He was unwilling, owing to the fact that the motor had heated upon its first trip through
“We will see if we can fix it while you have it here. You need not worry about payment of the notes. Everything will be all right until your truck is either fixed up or we will do something.”
The truck was then placed in the garage, where it was thoroughly overhauled. A few days later, it was
Under the heading “Argument,” in the appellant’s brief, it first propounds the question, “Could the respondents rescind at the time they attempted to do so?” Answering this question, if we have gathered the argument correctly, two principal contentions are made, the first of which is that Noel had retained and used the truck for such a length of time that it would be inequitable to permit a rescission. In support of this position, reliance is placed upon the general rule that, where an article is sold and does not meet the requirements of an express warranty, failure to give notice, or failure to return the property within a reasonable time after discovering the defects, operates as a waiver of the right to rescind and leaves the purchaser only the right to recover or offset damages. Dickinson Fire etc. Brick Co. v. Crowe & Co., 63 Wash. 550, 115 Pac., 1087; Fink v. Marr, 81 Wash. 92, 142 Pac. 482. But that rule is not applicable to the facts in this case. While the truck was used for a considerable time, it was retained in reliance upon the assurance of Krause that it would be put in such condition as to satisfy the warranty. Repeated efforts were made by mechanics sent by Krause to put the motor in good working condition, but without success. Diligence in rescission is a relative question. What is unreasonable delay in a given .cáse must depend upon particular circumstances. Delay in formal decision induced by the promise of the. vendor to make the machinery work properly is not a waiver of the right to rescind. Schroeder v. Hotel Commercial Co., 84 Wash. 685, 147 Pac. 417. In the present case, under the facts and circumstances, the truck was not retained
The appellant’s second contention is that, since the truck had been damaged in a collision with a street car, the right of rescission does not exist. In this connection, reliance is placed upon the rule that, where property while in the possession of the purchaser has been damaged to such an extent that the parties cannot be placed in statu quo, the remedy of the purchaser is one of damages and not rescission. Burnley v. Shinn, 80 Wash. 240, 141 Pac. 326, Ann. Cas. 1916 B 96. This rule contemplates that, where rescission is attempted, the article purchased must be returned in substantially as good condition as when received, and the inability to return it in such condition is due to the fault of the purchaser. If the repairs did not effect a material change in the truck or substantially alter its condition, there is no reason why it could not be lawfully returned to the seller. Mechem on Sales, vol. 2, § 819; Klock v. Newbury, 63 Wash. 153, 114 Pac. 1032. The motor truck, after its repair, was in substantially as good a condition as it was prior to the accident. In addition to this, the evidence shows that the collision was brought about by the stalling of the truck due to a defective motor, and that the driver was free from fault in attempting to cross the street car tracks at the time and place that he did.
The judgment will be affirmed.
Holcomb, C. J., Parker, Tolman, and Mitchell, JJ., concur.