Couch v. O'Brien
| Decision Date | 11 November 1913 |
| Citation | 136 P. 1088,41 Okla. 76,1913 OK 622 |
| Parties | COUCH v. O'BRIEN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
False and fraudulent representations as to the quality, character and grade of personal property, made by the agent of a vendor for the purpose of inducing a sale, justify a rescission of the contract of sale by the vendee, providing steps to rescind are taken within a reasonable time after the discovery of the falsity of such representations.
The purchaser of a piano, unacquainted with musical instruments and relying wholly upon the representations of the agent selling the same, and the character, grade, and quality of the piano being falsely and fraudulently represented to him may rescind the contract, within a reasonable time after the discovery of the fraud that has been perpetrated upon him, by returning the piano to such agent.
What is a reasonable time for taking steps to rescind is a question of law for the court to determine under the evidence in each particular case.
Commissioners' Opinion, Division No. 2. Error from County Court, Marshall County; J. W. Faulkner, Judge.
Action by J. T. Couch against J. F. O'Brien to recover on two promissory notes. Judgment for defendant, and plaintiff brings error. Affirmed.
E. D Slough, of Ardmore, for plaintiff in error.
Wm. M Franklin, of Madill, for defendant in error.
This action was originally filed in the justice court, and on appeal to the county court was tried to the court and a jury, and judgment rendered for the defendant, and the plaintiff prosecuted an appeal to this court by petition in error and case-made.
The action was based on two promissory notes for $87.50 each, alleged to have been given as the balance of the purchase money on a piano sold by the plaintiff in error to the defendant in error. The defendant in error acknowledged the purchase of the piano and the execution of the notes, but contends that there was a failure of consideration, and that the contract of sale had been rescinded by him; that he was led to rescind by reason of the fraud and misrepresentations of the plaintiff's agent, made to him at the time of the sale; that he was not a musician and not familiar with musical instruments, and did not rely upon his own judgment in the purchase of the piano, but relied entirely upon the representations of the plaintiff's agent as to the quality and value of the piano; that it was represented to him that this was a first-class instrument and was of the value of $500, and that on account of a special sale which the plaintiff was making it would be sold to him for $300, and he believed such representations to be true, while, as a matter of fact, the same were false and were fraudulently made, and the piano was not new, although it had been newly varnished, but was a secondhand piano and had been through a fire and exposed to water and heat and was of an inferior quality, and was practically of little or no value whatever. When he discovered these facts, he rescinded the contract of sale by returning the piano to plaintiff's agent. The case was tried upon the issues thus made, and the jury found for the defendant, and gave him judgment for $30, the cash payment he had made at the time of the purchase, and for costs.
The plaintiff in error assigns as error the overruling of his motion for new trial, and in this it is complained that the verdict is contrary to law and is not sustained by the evidence, and that the court erred in admitting certain evidence over the objection of the plaintiff in error, and also erred in the giving of an instruction to the jury. The instructions are not numbered as they should have been, but the one complained of is set out in full in the record and was attached to the motion for new trial. In this instruction the court...
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