American Exchange Bank v. Smith, 24556.

• Decision Date: 06 July 1933
• Docket Number: 24556.
• Parties: AMERICAN EXCHANGE BANK v. SMITH et ux.
• Court: Washington Supreme Court

23 P.2d 414

173 Wash. 441

AMERICAN EXCHANGE BANK v. SMITH et ux.

No. 24556.

Supreme Court of Washington

July 6, 1933

Department 2.

Appeal from Superior Court, King County; Chester A. Brtchelor Judge.

Action by the American Exchange Bank against W. S.D. Smith and wife. From a judgment for plaintiff, defendants appeal.

Affirmed.

Charles A. Spirk, of Seattle, for appellants.

Stratton & Kane, of Seattle, for respondent.

BLAKE Justice.

The plaintiff, as assignee of the vendor, brought this action to recover the balance of the purchase price due under a contract for the sale of an automobile. The defendants set up, by way of affirmative defense, certain alleged fraudulent representations made to them by the vendor, inducing them to enter into the contract, and prayed for rescission. From a judgment entered on findings favorable to plaintiff, defendants appeal.

The contract of sale was dated April 6, 1931, but was actually executed April 8th. The appellants, however, had taken possession of the car on April 5th, and had paid $100 down as earnest money on that day. That paid $200 additional (being the balance of the down payment) on April 7th. The appellants were required, under the terms of the contract, to take out fire, theft, and collision insurance on the car. This they did on April 8th. The contract contained the following provision: 'Should any loss, injury or damage occur to said property from any cause whatever, such loss, injury or damage shall not relieve vendee from the obligation to purchase and pay for the same according to the terms of this contract.'

On April 9th the car was stolen, and, a few days later, was found in the Skagit river in a badly wrecked condition. Under the directions of the sheriff of Skagit county, it was towed to Mount Vernon, where it has since remained.

The first deferred payment under the contract was due May 1 1931. About that date, Sullivan, the vendor in the contract the appellant W. S.D. Smith, and his attorney met at the latter's office in Seattle. Smith and his attorney charged Sullivan with having made certain fraudulent representations concerning the make, model, and condition of the car. They declared a rescission of the contract, and then and there tendered Sullivan the car and the insurance policy.

It may be conceded that Sullivan made the fraudulent representations claimed and alleged by appellants. It may also be conceded for the sake of argument, that the appellants were relieved from tendering the car back at the place in Seattle where they took possession of it, because of Sullivan's unqualified rejection of the proffered tender. Still the tender was insufficient to entitle appellants to a rescission.

As a condition precedent to a vendee's right to rescind, he must offer to place the vendor in statu quo. 5 C.J. 280. Ordinarily, this means that he tender a return of the subject-matter of the contract in substantially the same condition as when he received it. 2...