Bell v. Anderson

• Court: Wisconsin Supreme Court
• Citation: Bell v. Anderson, 74 Wis. 638, 43 N. W. 666 (Wis. 1889)
• Decision Date: 05 November 1889
• Parties: BELL v. ANDERSON.

74 Wis. 638

43 N.W. 666

BELL

v.ANDERSON.

Supreme Court of Wisconsin.

Nov. 5, 1889.

Appeal from circuit court, Fond du Lac county.

In March, 1888, plaintiff purchased a piano of defendant, and paid him therefor $200 in cash and an old organ. About two weeks later, she offered to return the piano to the defendant, and demanded of him the organ, and repayment of the $200. The defendant refused to accept the piano, and also refused to return the organ or refund the money. The ground upon which the plaintiff thus sought to rescind the purchase was that certain representations made by the defendant to her concerning the age and qualities of the piano, on which she relied in making the purchase, were false and fraudulent. This action is to recover the consideration paid for the piano. The action is in tort. The plaintiff recovered judgment for such consideration, and interest thereon from the date of the demand. A motion for a new trial was denied The defendant appeals from the judgment.Duffy & McCrory, for appellant.

Knowles & Phelps, for respondent.

LYON, J., ( after stating the facts as above.)

The law is that if, on the sale of property, the vendor knowingly makes any false representation to the vendee affecting the character or quality of the article sold, upon which the vendee relies, and upon the faith of which he purchases, such vendee may (if he do so within a reasonable time) rescind the purchase by offering to return the property so purchased, and demanding a return of the consideration paid therefor. Potter v. Taggart, 54 Wis. 395, 11 N. W. Rep. 678, and cases cited. The same right of rescission obtains, in certain cases, for a breach of warranty unaccompanied by fraud. Boothby v. Scales, 27 Wis. 626, and cases cited; Paige v. McMillan, 41 Wis. 337. But the latter rule has no application to this case, for the action is founded upon the alleged fraudulent representations made by the defendant. The testimony tends to show that the defendant represented to plaintiff that the piano had been in use not more than six months or a year, and was as good as a new instrument, when in fact it was fifteen or twenty years old, or more; and that by reason of its age or use, or both, it was defective, and was not as good as a new instrument of the same kind; also that on discovering the defects in the instrument, and its age, she immediately offered to return it. The jury, by finding for the plaintiff, must have found that the testimony established those facts, and the further fact that the defendant knew that the piano was not as represented. So, unless some error was committed on the trial, the judgment is right. This brings us to the consideration of the errors assigned as grounds for the reversal of the judgment.

I. It is claimed on the authority of Potter v. Taggart, supra, that the motion of the defendant for a nonsuit, made at the close of plaintiff's testimony, should have been granted, because there was no proof that plaintiff was in a condition, at the time of the trial, to return the piano. The testimony tends to show that after the defendant had proposed to sell the plaintiff the piano, but before she had decided to purchase it or any piano, the defendant took the instrument to her house without her consent, or any request by her that he should do so, and was allowed to leave it on trial. Two days afterwards she concluded to purchase it, and did so, paying the consideration therefor. It was proved on the trial that the instrument was still there down to the week of the trial, and there is no suggestion that it has ever been removed. The presumption is that it still remains there for the defendant. Thus the proofs meet the requirement of the rule.

II. The plaintiff testified that she had used the piano a little, as she had occasion, down to the time of trial. It is claimed that such use thereof is inconsistent with a rescission of the contract of purchase, and hence that her offer to return the instrument is nugatory. Such use may or may not be inconsistent with a rescission of the contract. Were we deciding the question of...