Don McCullagh, Inc. v. Dimitroff

Dethmers, J. Plaintiff brought suit on a check for $900 made and given to it by defendant as part payment of the $3,000 purchase price of a used automobile and made a prima facie case by introduction of the check into evidence. Defendant claimed rescission based on alleged misrepresentation by plaintiff’s salesman concerning the mileage on the automobile. Defendant purchased the automobile from plaintiff on September 15, 1948. He testified that on about September 28th he learned the facts about the true mileage on the car; that shortly thereafter he talked to plaintiff’s salesman about trading it in on a new Buick; that defendant then told the *658 salesman to keep it or sell it or do whatever he wished with it, providing he would get defendant a new car; that the salesman replied that he could not get defendant a new Buick but could get him other makes for $300 or $400 more money; that the salesman refused to allow the car to be left at plaintiff’s place of business; that some 3 weeks after its purchase defendant talked to the salesman for the last time about trading the car in on a new one. He did not leave the automobile with plaintiff but continued to drive it until after October 26th for more than 900 miles. Defendant alleged that on October 5, 1948, he sent plaintiff a letter rescinding the purchase agreement. Defendant testified that he kept the car from 6 weeks to 2 months and then turned it over to a finance company, which took possession because of defendant’s failure to make payments due it on the car. On trial plaintiff moved for a directed verdict and, after a jury verdict for defendant, for a judgment non obstante veredicto, which were denied. Plaintiff appeals. Viewed in the light most favorable to the defendant the testimony does not establish rescission. When he offered to leave the car with plaintiff he did not demand return of payments or of the check, but spoke merely of trading the car in on another. This did not constitute clear and unambiguous notice to plaintiff of intention to rescind. Under such circumstances he would not be deemed to have rescinded. 46 Am Jur, Sales, § 763. If defendant’s words, actions, or letter might, under any circumstances, be held to have amounted to notice of or an attempt at rescission, his subsequent action constituted a waiver thereof. Not only did he fail to return the automobile to plaintiff, but continued to use it thereafter for a number of weeks. *659 “After an attempted rescission by the buyer of chattels, which the seller has not accepted, the buyer, if he intends to rely upon it, must adhere thereto and act consistently therewith, and if he thereafter continues to use the property as his own, he may be held to have waived or abandoned the rescission, and may be precluded from rescinding or asserting a claim that he has rescinded.” 77 ALR 1178, note. In the same vein, this Court in Foster v. Rowley, 110 Mich 63, said: “It was the duty of defendant, as soon as he learned of the misstatements, to rescind the contract; and notice of such rescission must have been promptly given, and adhered to, in order to bind the parties thereto. The continued use of the property for some 30 days after he had learned the facts would be a waiver of the right of rescission, even though notice of such rescission had been given. Hubbardston Lumber Co. v. Bates, 31 Mich 158; Dunks v. Fuller, 32 Mich 242; Campau v. Lafferty, 50 Mich 114; Craig v. Bradley, 26 Mich 353; Gridley v. Globe Tobacco Co., 71 Mich 528; Beal v. Congdon, 75 Mich 77; Dailey v. King, 79 Mich 568. While the court left the question of rescission to the jury, we think, under the defendant’s own testimony, the court should have instructed them to find a verdict for the plaintiff. We think defendant’s continued use of the property for 30 days after he learned of the alleged fraud amounted to a waiver of any intent to rescind the contract. Marthinson v. North British & Mercantile Ins. Co., 64 Mich 372, 384; Cobbs v. Fire Association of Philadelphia, 68 Mich 465; Peninsular Stove Co. v. Osmun, 73 Mich 570.” To the same effect, see Hakes v. Thayer, 165 Mich 476; Linderman Machine Co. v. Shaw-Walker Co., 187 Mich 28; Hughes v. Wm. F. V. Neumann & Sons, 253 Mich 386. Plaintiff’s motions, as above noted, should have been granted. *660 Judgment for defendant is reversed and the cause remanded for entry of judgment for plaintiff non obstante veredicto in the amount of $900, plus interest thereon at the rate of 5 per cent, per annum from and after September 15, 1948. Costs of both courts to plaintiff. Boyles, C. J., and Reid, North, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred.