Tiffany v. Times Square Automobile Co.

• Decision Date: 03 March 1913
• Citation: Tiffany v. Times Square Automobile Co., 154 S.W. 865, 168 Mo. App. 729 (Mo. App. 1913)
• Parties: TIFFANY v. TIMES SQUARE AUTOMOBILE CO.
• Court: Missouri Court of Appeals

154 S.W. 865

168 Mo. App. 729

TIFFANY v. TIMES SQUARE AUTOMOBILE CO.

Kansas City Court of Appeals. Missouri.

March 3, 1913.

1. SALES (§ 119) — RESCISSION BY BUYER — FRAUD.

The buyer of a secondhand automobile may rescind the sale where she knew nothing of the qualities of the automobile, and so informed the seller's agent, and the agent represented the machine to be fit for the purposes for which the buyer wanted it, stating that it was a first-class car, and would meet all of the requirements stated to him by the buyer, and, on discovering that the representations were false and fraudulent and the car worthless, the buyer tendered it back and demanded the money she had paid therefor.

2. EVIDENCE (§ 434) — PAROL EVIDENCE AFFECTING CONTRACT OF SALE — ADMISSIBILITY.

That a bill of sale of a secondhand automobile states that the instrument constitutes the entire contract between the parties, and that no representations, warranties, or conditions, other than those appearing in the bill of sale, shall be binding upon either party, does not preclude the buyer, in suing to rescind the purchase, to show fraudulent representations by the seller's agent that the car was a first-class one, and would meet all of the requirements stated to him by the buyer.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Ina Tiffany against the Times Square Automobile Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Reed & Harvey, of Kansas City, for appellant. John C. Stearns and C. F. Mead, both of Kansas City, for respondent.

ELLISON, J.

Defendant was a retail dealer in automobiles and sold one to plaintiff for $850. Plaintiff claims that her purchase was induced by the fraud and deceit practiced upon her by defendant's agent, and that, as soon as she discovered the fraud, she offered to rescind and tendered the machine back and demanded the return of the purchase money. On defendant's refusal to rescind, she instituted this action for the purchase price, setting up the fraud she claims was perpetrated upon her. She recovered judgment in the trial court.

The evidence shows that plaintiff knew nothing of the qualities of an automobile, and that she so informed defendant's agent and told him the use she wanted to make of the machine she should purchase, and that she would have to depend on him to furnish her what she desired. It further shows that the agent represented the machine to be fit for the purposes for which plaintiff wanted it; that it was a first-class car and would meet all of the requirements stated to him by plaintiff; that plaintiff then bought and paid for the car; that defendant's representations were false and fraudulent, the car being worthless; and that, upon discovering the fraud, she tendered it back and demanded the money she had paid.

The foregoing facts will justify the judgment and lead to an affirmance (Cahn v. Reid, 18 Mo. App. loc. cit. 126, 130), unless...