Frye v. Lyon

• Decision Date: 02 June 1924
• Docket Number: 3961.
• Citation: 299 F. 926
• Parties: FRYE v. LYON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

299 F. 926

FRYE v. LYON.

No. 3961.

United States Court of Appeals, District of Columbia.

June 2, 1924

Submitted December 6, 1923.

Rehearing Denied June 14, 1924.

Appeal from the Supreme Court of the District of Columbia.

H. S Barger, of Washington, D.C., for appellant.

Dan Thew Wright and Philip Ershler, both of Washington, D.C., for appellee.

Before ROBB and VAN ORSDEL, Associate Justices, and BARBER, Judge of the United States Court of Customs Appeals.

BARBER Acting Associate Justice.

The material facts are as follows: Appellant, Frye, defendant below, is a dealer in automobiles, handling the Kline car. The appellee, Lyon, owned a used Kline car, hereinafter referred to as the old car. In October, 1921, they made a trade, as a result of which Lyon received from Frye a Kline car, hereinafter called the new car, the agreed price of which was $2,200. In payment therefor he delivered to Frye the old car and his 12 notes, for $100 each, payable in from 1 to 12 months after date. At the same time he executed and delivered to Frye a conditional bill of sale, covering the new car, under the terms of which it was agreed that he would pay the notes punctually as they fell due, and that the title to the new car should remain in Frye until the notes, with interest, were paid. The first of such notes matured November 10th following, and was paid by Lyon. At the time the second note matured, December 10, 1921, Lyon in writing notified Frye as follows 'I have discovered that the Kline car which you undertook to sell me on or about October 21, 1921, was not a 1922 car as represented, and was not a new car, as represented. I therefore rescind the contract of sale upon the ground of fraud, tender to you the Kline car, and demand the return of my Kline car, which was taken in part payment, and the amount of money which I have paid; that is to say, $100.'

Frye refused to allow or accept such recission. Lyon paid no more upon the notes, and on December 30, 1921, Frye replevied the new car of Lyon. On January 5, 1922, Lyon replevied the old car from Frye. Both these cases duly came on for trial in the court below, and by agreement of the parties were tried together before a jury. After the close of the evidence on both sides, the court gave a charge to the jury to which no exception was taken by either party.

The controlling questions of fact in the suit of Lyon v. Frye were whether the latter had made such misrepresentations as to the new car as vested in Lyon a right to rescind, and, if so, whether he had taken the steps necessary to rescission. On these questions the jury was fully instructed. As to the suit of Frye v. Lyon there was no question as to Frye's right to replevin the new car, provided he was not guilty of misrepresentations as claimed by Lyon. The jury were correctly instructed on that issue, and were also instructed that, if Frye had made the misrepresentations claimed by Lyon, the former could not maintain his replevin suit unless he first tendered to Lyon the old car. But it must be noted in this connection that there was no evidence tending to show, and no claim was made, that such a tender was made by Frye to Lyon.

Near the close of the charge the court said to the jury:

'In conclusion, there are two suits, as you will, of course, understand, one brought by Frye against Lyon, which involves the new car, if I may so describe it, and the other brought by Lyon against Frye, involving the old car. Now, if you find that Frye has made out his right to retake the car that he sold to Lyon, then you should bring in your verdict in his favor, with nominal damages in both cases. As I understand it, and counsel will correct me if I am wrong, these two cases will stand or fall together. On the other hand, if you should find in favor of Lyon, namely, that he had the right to rescind his purchase of the car upon the ground of a misrepresentation, * * * then you will bring in your verdict for Lyon.'

Counsel made no claim that this was...