Keyser v. O'Meara
| Decision Date | 25 April 1933 |
| Citation | 165 A. 793,116 Conn. 579 |
| Parties | KEYSER v. O'MEARA. |
| Court | Connecticut Supreme Court |
Appeal from Superior Court, Hartford County; John Rufus Booth Judge.
Action by Harry Keyser against Martin J. O'Meara, for breach of warranty of an automobile truck, brought to the superior court and tried to the court. From a judgment in favor of the defendant, the plaintiff appeals.
No error.
Samuel Steinberg and Jacob Berman, both of Hartford, for appellant.
William S. Hyde, of South Manchester, for appellee.
On November 4, 1931, the defendant sold the plaintiff a Ford automobile truck, cab, and chassis, for $816, the then prevailing price for a new motor vehicle of that type and model, receiving therefor $100 in cash, twelve notes of the plaintiff amounting to $816, and another Ford truck of the agreed value of $260. The defendant warranted the car so sold to be new and unused. The plaintiff used the car for six months and then discovered that it was not new at the time of his purchase, but had been previously used by other parties whereupon he at once offered to return the car to the defendant and demanded a return of what he had paid therefor and a rescission of the sale, all of which the defendant refused. Thereafter the plaintiff used the car on three occasions and then put it in storage for the benefit of the defendant.
It is claimed by the plaintiff that the course which he took was that prescribed by our Sales Act, and entitled him prima facie to the relief therein provided. " When there is a breach of warranty by the seller, the buyer may, at his election *** rescind the contract to sell or the sale and refuse to receive the goods, or, if the goods have already been received, return or offer to return them to the seller and recover the price or any part thereof which has been paid" ; and it is provided further that upon the refusal of the seller to accept a rescission of the sale and to return the amount paid, the buyer may hold the goods as bailee, subject to a lien to secure repayment of the amount paid. General Statutes, § 4689 (d).
The record in this case shows that the only defense pleaded aside from a general denial, was the good faith of the seller. While there is in fact a breach of warranty, a defense of good faith is immaterial. Rich v. Johnston, 92 Conn. 599, 603, 103 A. 1003.
It is also provided by General Statutes, § 4689, that the buyer cannot rescind the contract " if he fails to...
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Hymer v. Dude Hinton Pontiac, Inc.
...showing the above-stated elements, as a prerequisite to his recovery herein. Stone v. Kies, Mo.App., 227 S.W.2d 85, 88; Keyser v. O'Meara, 116 Conn. 579, 165 A. 793(2). Thus, our first inquiry becomes whether plaintiff repudiated the contract of sale of the Pontiac (assuming, for the purpos......
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...fault of the buyer, the right to rescind and return is lost, where the injury did not result from the breach of warranty. Keyser v. O'Meara, 116 Conn. 579, 165 A. 793;Hamilton v. Sterling Motor Truck Co. of New England, 52 R.I. 328, 160 A. 866;Summers v. Provo Foundry & Machine Co., 53 Utah......
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