Green v. Antoine

• Citation: 133 Cal.App.2d 269,284 P.2d 76
• Parties: Harold R. GREEN, Plaintiff and Respondent, v. W. C. ANTOINE, Defendant and Appellant. Civ. 8566.
• Decision Date: 25 May 1955
• Court: California Court of Appeals

Page 76

284 P.2d 76

133 Cal.App.2d 269

Harold R. GREEN, Plaintiff and Respondent, v. W. C. ANTOINE, Defendant and Appellant.

Civ. 8566.

District Court of Appeal, Third District, California.

May 25, 1955.

Stephen P. Galvin, Merced, for appellant.

Blewett, Blewett, Macey & Garretson, by Richard E. Macey, Stockton, for respondent.

VAN DYKE, Presiding Justice.

Respondent Green was plaintiff in the trial court. His occupation was that of farmer and contractor. After a demonstration, during which representations were made to him, he purchased from appellant Antoine an agricultural machine known as a rotary tiller. It was designed by its manufacturer, and was purchased by respondent from appellant, for the purpose of pulverizing soil to a point suitable for use as seed beds in the growth of row crops. The machine was pulled by a tractor but had its own motor that operated the soil pulverizing equipment. Respondent made a down payment of $2,206.90 and agreed to pay a total purchase price of $5,140, plus a financing charge. Respondent put the machine into service and it proved too weak for the strains met. It broke down on four occasions during a total period of use approximating 300 hours. Each time the machine broke, appellant, on being informed of the breakdown, repaired the machine. The breaks were in the rear end assembly. About two years and four or five months before this action was begun respondent returned the machine to appellant and it was taken to the manufacturer whose field representative had so recommended, for the purpose of again repairing it and this time so rebuilding the faulty parts as to eradicate the weakness which was thought to be causing the breakdowns. Respondent borrowed a larger machine of the same type from the appellant and did some further work until the season of the year for such work was over. Respondent, appellant and the factory representative met and discussed the situation as to the machine being purchased. Respondent requested that a heavier machine be delivered to him and that the down payment he had made on the faulty machine be credited to him on the substitute machine, but this proposal was rejected. The manufacturer returned the machine to appellant, but it had not been rebuilt in any way, having merely had a substitution of new parts for the broken parts. Some time thereafter respondent learned that the original machine had been returned by the manufacturer to appellant. He went to see appellant who told him the machine had not been rebuilt. Appellant told respondent that he was going to fix the machine himself. However, respondent heard nothing further from him and made no further payments. Under the agreement the balance was to be paid December 11, 1950, and when it fell due the appellant himself made the payment to the bank which had financed appellant's own first purchase of the machine from the manufacturer. Appellant made no demand on respondent to make the payment and thereafter started using the machine himself in his own operations. There appears to have been no further communication between the parties and the situation remained in that state until in September of 1952 this action was begun by respondent. The complaint was in the form of a common count for money had and received and the theory of respondent therein, as became apparent at the trial, was that there had been a complete failure of consideration and that the parties had mutually rescinded the contract of sale. The trial court found as follows: That respondent bought the machine on March 10, 1951 (this date was in fact March 10, 1950, it being apparent from the entire record that stating the year as 1951 was a clerical error); that at that time appellant did not himself have complete title to the machine, but that the title rested in the bank that financed his purchase of it from the manufacturer; that respondent made the down payment above referred to and argeed to pay the balance within 30 days or if not then paid to pay the financing bank the amount due on appellant's contract with the bank on the following 10th of December; that respondent upon such payment was to receive title; that appellant had guaranteed the machine would perform and that this guarantee was that it would perform satisfactorily on unplowed ground; that the machine did not work satisfactorily on unplowed ground; that it was unable to perform the work for which it was purchased; that respondent returned the machine to appellant in April of 1951 and that appellant then agreed to make certain changes in the machine but did not do so; that appellant forwarded the machine to a repair shop and it was returned to him in June of 1951 without any changes having been made; that respondent thereafter was informed that the machine had been returned to appellant without the changes agreed upon having been made; that in December of 1950 appellant made a payment to the financing bank on his conditional sales contract with it and thereafter used the machine for his own personal use; that appellant did not return to plaintiff the down payment he had received; that its return was demanded and that when demanded appellant told respondent he would think it over, but took no further action until he made the partial payment to the financing bank. As conclusions of law, the court found that the foregoing facts worked a total failure of consideration for the contract between respondent and appellant; that respondent had made an offer of rescission to appellant and that appellant had accepted the same in December of 1951 and that respondent was entitled to judgment for the amount he had paid with interest from the date of rescission. Judgment was thereafter entered in conformity to the findings and conclusions and it is from that judgment appellant takes this appeal.

Appellant in his answer pleaded the statute of limitations found in section 339, subdivision 1, of the Code of Civil Procedure, and here contends that this defense was made out and that he was, therefore, entitled to judgment in his favor. He argues that, assuming the facts warranted a conclusion that rescission had taken place, it could have taken place no later than July 11, 1950, when the machine having been returned from the manufacturer to appellant, the respondent, on being informed it was there, refused to accept it. This date being more than two years before the action was begun, appellant concludes that as a matter of law the defense of limitation was made out. However, this contention fails to give effect to the testimony that when, after breaking down four times in normal use, the machine was returned to appellant, the parties then reached an understanding that the manufacturer would take it and rebuild it in such manner as to correct the weaknesses which apparently were causing the breakdowns and which apparently also were a matter of faulty design. There is testimony directly to the point that the machine was to be remedied and not merely repaired and left with the same inherent weaknesses that were causing the trouble. It is also of record that the manufacturer did not rebuild the machine but, on the contrary, repaired it and sent it back to the appellant with no better capacity to withstand the normal strains of its operations than it had had before. The last discussion between the parties to the contract occurred thereafter and there is evidence that, while respondent refused...