Lathrop v. Maddux

• Decision Date: 07 December 1914
• Docket Number: 7827.
• Citation: 58 Colo. 258,144 P. 870
• Court: Colorado Supreme Court
• Parties: LATHROP v. MADDUX.

144 P. 870

58 Colo. 258

LATHROP v. MADDUX.

No. 7827.

Supreme Court of Colorado

December 7, 1914

Error to District Court, Montrose County; Sprigg Shackleford Judge.

Action by I. O. Maddux against J. V. Lathrop. There was a judgment for plaintiff, and defendant brings error. Affirmed.

C. J Moynihan and Dan H. Hughes, both of Montrose, and Davis Whitney & Mothersill, of Denver, for plaintiff in error.

Walter P. Crose and Catlin & Blake, all of Montrose, for defendant in error.

SCOTT J.

This is an action to rescind a contract. The complaint in brief alleges: That on the 28th day of August, 1909, the plaintiff entered into an agreement with the defendant for the purchase of a 20 horse power International Harvester gasoline traction engine. That the agreed price was $1,680, to be delivered in the city of Montrose, of which $500 was to be paid upon delivery, and the remainder by two promissory notes due January 1, 1910, and December 1, 1910, respectively, to be secured by chattel mortgage. It is alleged that the defendant represented to the plaintiff that the engine so agreed to be purchased was a 20 horse power traction engine; that said engine would develop 20 horse power at the belt and 12 effective horse power on the traction; that the engine was identically the same engine that had been entered in competitive tests for plowing purposes in Manitoba dnd Brandon, Canada, and at which time it had won prizes and made records; that the engine was in every way suitable for the purpose desired, with standard size and weight shaftings and castings made of the best material, and that the machine would develop 240 revolutions per minute, 12 horse power effective traction, and would give a speed on the traction of 2 1/4 to 2 1/3 miles per hour; that the defendant further represented that the engine would have 22-inch drive wheels; that the plaintiff believed and relied on such representations by the defendant, and by reason thereof contracted for the same upon the terms above set forth. It was further alleged that afterward a traction gasoline engine was delivered by the defendant to the plaintiff; that, at the time of the delivery, the plaintiff was ill and in a sanitarium and unable to inspect the machine, but thereupon paid the $500 in cash, and executed and delivered the notes and mortgage; that shortly thereafter repeated attempts were made to do plowing with the engine, and with care and under varying conditions, and that under such tests the engine failed to develop more than 5 horse power of effective traction at any time, and did not exceed a speed of more than 1 1/4 miles per hour; that the engine delivered is not the kind of an engine which participated in the competitive tests as represented by the defendant; that all such engines were gear driven; and that the engine delivered was a friction drive. The complaint alleges many other defects in the construction of the engine, and that after such tests, and immediately after the discovery of the defects, the plaintiff notified the defendant thereof; that thereafter the defendant caused two of his experts to overhaul the engine and put it in order, but that they were unable to develop more than 3 horse power effective traction or a speed of more than 1 1/2 miles per hour; that at that time the plaintiff advised the defendant that the engine was not as represented, and thereupon redelivered the same to the defendant, and which delivery was accepted by him, and who thereafter kept it in his possession. The complaint further alleges a demand for the cancellation of the two notes, and for the sum of money paid in cash upon delivery of the engine. The complaint further alleges damages sustained, and also contains another cause of action upon a different matter.

The answer is a specific and general denial of the allegations of the complaint, and asks for judgment upon the notes remaining unpaid and for foreclosure of the mortgage.

There is no contention in the briefs and arguments that the engine was as it is alleged to have been represented, nor that it was such as to in any reasonable manner do the work for which it was purchased.

The contentions of the plaintiff in error are that the plaintiff is precluded from recovery in the case for the reasons: (1) That the cause of action, if any, set up in plaintiff's pleadings is one for loss for damages upon breach of warranty and not one for rescission; (2) that, if it be an action for rescission, then there is not sufficient evidence of fraud to sustain such action; (3) that, in any event, the plaintiff has waived his right to rescission by not acting promptly, by dealing with the property as his own, and by placing himself in such position as to make it impossible to place the defendant below in statu quo.

The complaint alleges a contract of sale, certain representations and warranty as to the character of the engine, and as to speed, power, and work it was represented to do, as related to the purpose for which it was purchased, together with a statement of results of field tests, in which the kind of an engine so sold participated, together with reliance by plaintiff upon such representations, and contains allegations as to the falsity thereof. It closes with a prayer specifically asking for a return of the sum paid upon delivery, with interest, and for the cancellation of the two unpaid notes. The case was tried upon this theory, and judgment rendered accordingly.

The findings of the court conclude in the following language:

'I am not satisfied as to the damage that has been done to this engine by the use. The evidence is not clear upon that subject, nor am I satisfied as to the amount of damages which the plaintiff suffered. Certainly some of his claims for damage are unreasonable, and are not established at all, in my judgment. I will ignore his claim for damages, and I will give a judgment for the plaintiff in this case for the return of the money, which he paid, and for the cancellation of the notes and mortgage, and that he recover his costs.'

It is very clear that the action was one in equity and to rescind the contract.

It appears that in the month of May, 1909, the plaintiff, Maddux, called upon the defendant, Lathrop, at the latter's hardware store in Montrose, and expressed a desire to purchase a gasoline traction engine. The defendant then stated that he had no such engine as that desired, but that he handled other kinds of machinery of the National Harvester Company, and would look into the matter. Shortly afterward a Mr. Stream, representative of the Harvester Company, came to Montrose, and the defendant then took him to see Mr. Maddux. After some general conversation between this agent and Maddux, relative to the Harvester Company's traction engine, Maddux signed an order for an engine. This order was dated May 26, 1909, and was given by the plaintiff with the understanding that it was not to be final until the plaintiff had 30 days' time in which to make an investigation concerning the merits of the engine, thus agreed to be purchased, within which time the plaintiff might countermand his order.

The testimony further shows: That within the 30 days from the singing of the order Maddux, the plaintiff, went to the defendants' store and told him that he had made an invesigation concerning the engine manufactured by the Harvester Company, and that such invesigation was unsatisfactory, and therefore would not take it. That later and in August of that year, the defendant sent for Maddux, who came to the store, whereupon the defendant produced a sales catalogue, or rather a catalogue of the Harvester Company...