73 Cal.App. 700, Civ. 4001, Green v. Darling

Docket Nº:Civ. 4001.
Citation:73 Cal.App. 700, 239 P. 70
Opinion Judge:CRAIG, J.
Party Name:GREEN v. DARLING.
Attorney:Denio & Hart and Swaffield & Swaffield, all of Long Beach, for appellant. G. M. Spicer and Herbert Moore, both of Long Beach, for respondent.
Judge Panel:We concur: FINLAYSON, P. J.; WORKS, J.
Case Date:July 23, 1925
Court:California Court of Appeals
 
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Page 700

73 Cal.App. 700

239 P. 70

GREEN

v.

DARLING.

Civ. 4001.

District Court of Appeals of California, Second District, Second Division

July 23, 1925

Appeal from Superior Court, Los Angeles County; Edwin F. Hahn, Judge.

Page 701

Denio & Hart and Swaffield & Swaffield, all of Long Beach, for appellant.

G. M. Spicer and Herbert Moore, both of Long Beach, for respondent.

CRAIG, J.

The complaint in this action alleged that on September 21, 1920, the defendant was engaged in the business of selling automobile trucks and automobile trailers in the city of Long Beach, Cal.; that on said date the defendant, through his authorized agent, entered into a contract in writing with the plaintiff, by the terms of which the defendant agreed to sell to plaintiff one Utility trailer, tires

Page 702

and body. Said complaint consisted of three separate causes of action in each of which the alleged written instrument was embraced. It was further alleged that on or about October 5, 1920, the parties supplemented said contract by a further instrument in writing; that the trailer was delivered to the plaintiff, and that he began to use the same, but that it commenced to break down; that the defendant agreed to repair the same, but that it continued breaking down on an average of twice a week, and that the plaintiff finally returned said vehicle to the defendant, notified him that it was not suited to plaintiff's business, and had not given satisfaction as it was guaranteed to do, and demanded the return of $1,024.40 which had been paid on account of the purchase price thereof; that no part of said sum had been refunded, and that the same was due and owing from the defendant to the plaintiff. In the second count the principal allegations of the first count were repeated, with a further allegation that said trailer had become wholly useless; that it was returned; that the consideration for the execution of the contract failed in part before being rendered to plaintiff. In said second count it is also averred that " said contract mentioned in paragraphs 2 and 3 was rescinded by plaintiff on or about the 17th day of December, 1920; that plaintiff has returned to defendant the Utility trailer and everything of value received by reason of said contract." In the third count it is averred that " the parties hereto mutually agreed to rescind said contract contained in paragraphs 2 and...

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