Brooke v. Perfection Tire Co.

• Decision Date: 18 March 1924
• Parties: BROOKE v. PERFECTION TIRE CO.
• Court: Oregon Supreme Court

223 P. 939

110 Or. 567

BROOKE v. PERFECTION TIRE CO.

Supreme Court of Oregon

March 18, 1924

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Suit by L. B. Brooke against the Perfection Tire Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is a suit to rescind a conditional sales contract for the purchase of an automobile, and to recover the sum of $400 which the plaintiff alleges he was defrauded into paying upon the contract.

It is alleged that on the 20th day of April, 1921, the defendant by its agent, Randle, sold to plaintiff a Grant Six automobile, 1921 model, and that for the purpose of willfully overreaching and defrauding the plaintiff the agent falsely and fraudulently represented to plaintiff that the automobile which was the subject of the purchase was a 1921 model, and was the best automobile he had in the house, and was in first-class condition. There are the usual allegations in regard to the knowledge of the agent as to the falsity of his representations; the particular false representations being that the automobile was not a 1921 model, but a 1920 model and that it was not the best automobile in the house, and was not in first-class condition. It is alleged that the frame had been bent, and that the car had been abused by being driven without water or oil. It is further alleged that the plaintiff had had no experience with automobiles, and was going to work for defendant as a salesman, and was not familiar with the models of Grant Six automobiles or the condition of said car, and was unable to ascertain the truth or falsity of said representations, and relied wholly upon the representations of the defendant, believing them to be true, and thereupon paid defendant, upon said contract, the sum of $400. It is then alleged that thereafter plaintiff discoverd the falsity of the agent's representations, and thereupon, about the 4th day of June, 1921, tendered the automobile to the defendant and demanded the return of his money; that defendant took the automobile, but neglected to repay the said sum of $400. There was a prayer that the contract be rescinded, and for a decree that the defendant pay back to plaintiff the sum of $400, and for such further equitable relief as should seem just.

Defendant answered, denying the alleged frauds, and denied all of the complaint, except the fact that it entered into a conditional sales contract with plaintiff, and that plaintiff had paid $400 thereon. It was further alleged, as a separate answer and defense, that on about the 20th day of April, 1921, the plaintiff entered into a contract with defendant, whereby he was to act as salesman for defendant in the sale of defendant's automobiles, and that defendant was to pay him therefor a commission upon all sales by him, and plaintiff was also to purchase from defendant a Grant Six automobile, to be used as a demonstrating car; it being understood and agreed between plaintiff and defendant that the plaintiff was to choose any car in the salesroom of defendant, and plaintiff was to be allowed the agent's commission to apply upon said purchase price. Defendant then alleges that plaintiff selected the car described in the complaint, upon which he paid $150 cash down, and thereupon signed a conditional sales contract; that through a mistake the car was described in the conditional sales contract as a "Grant Six car, model 1921, motor No. 1549, serial No 53834," while in fact the Grant Six automobile was not then known and is not now known under the name of a yearly model, although said car was made for the 1921 trade, and was of the very latest model the defendant had at that time received from the factory manufacturing the same; that thereafter and about the 28th day of April, 1921, defendant entered into a new contract with plaintiff, wherein it was provided that the plaintiff was to receive from defendant a salary of $80 per month in addition to a commission upon all sales made by him of defendant's automobiles, the contract providing specifically that plaintiff was to continue his payments upon his demonstrating car; that after entering upon the new agreement plaintiff paid defendant the sum of $250, to be...