Brooke v. Perfection Tire Co.

McBRIDE, C. J. 1,2. It is earnestly contended that, because there is no allegation of damage and no specific proof of damage in this case, it is not a case for the equity side of the court. There was no de [571] murrer to the complaint, which is not so full perhaps as it should have been. In fact, it is not even stated that the conditional sales contract was in writing, but this is expressly aided by the statement in the answer that the contract was in writing. The objection that this case should have been brought on the law side of the court will not be considered where both parties have joined issue on the equity side and tried their case out there. 3. It is earnestly urged that, as the complaint does not express the alleged damage by reason of the difference in the model, plaintiff has not stated a cause of action, and this would be true if he had resorted to the law side of the court, but, as observed by Mr. Justice Burnett in McGowan v. Willamette Valley Irr. Land Co., 79 Or. 454, 456 (155 Pac. 705, 706): “This being a suit to rescind on the ground that the plaintiffs did not obtain that for which they contracted, the. relative values of the two kinds of orchards are of no moment. If the plaintiffs had chosen to bring an action for damages instead of rescinding the agreement, and it could have been shown that an orchard of Spitzenbergs was worth as much or more than one of Rome Beauties, the defendant would necessarily prevail. It is a platitude of law to say that when a person contracts to purchase a certain thing, he is entitled to that specified article. In a suit to rescind, therefore, it does not lie in the mouth of the defendant to say to the plaintiff: ‘True enough, you did not obtain that for which you sought, yet we have given you something just as good and you have no right to rescind.’ Pennington v. Roberge, 122 Minn. 295 (142 N. W. 710); Mather v. Barnes (C. C.), 146 Fed. 1000.” In this case it may be entirely possible, though not probable, that a Grant car of 1920 model is just as good, or better, than a 1921 model; but plaintiff was entitled to have that which he contracted for, whether [572] as a matter of utility or as a matter of mere taste. He is entitled to indulge his taste, or even his whim, if he is willing to pay for it, and we think the weight of testimony, including the written agreement, supports plaintiff’s contention that the representation was actually made to him and that he acted upon it, as, under the circumstances, he had a right to do. It is also claimed that plaintiff waived these representations, if such were made, by entering into an additional contract about a week later, with full knowledge of the mistake or misrepresentation in regard to the model of the car. We do not think that this is borne out by a preponderance of the testimony. 4. It is also contended that plaintiff failed to act promptly in offering to rescind the contract and in tendering back the car. The evidence indicates that the car was taken by him on the twentieth day of April, 1921, and that he did not discover the alleged misrepresentations, so as to be absolutely certain, until some time in May, when he was informed by the manufacturers that the car was a 1920 model, whereupon he immediately returned it and demanded his money. We think that he acted with reasonable promptitude. Other misrepresentations are alleged and testified to by the plaintiff and in regard to these the testimony is somewhat contradictory and we are inclined to give weight to the findings of the circuit judge, who had the witnesses before him and was better capable than this court to appraise the value of their testimony. The decree of the lower court is affirmed. Affirmed. Bean, Brown and McCourt, JJ., concur.