Ketterer v. Bay View Nash Co.

EschweileR, J. Assuming that the testimony in the case was sufficient to warrant a finding that the plaintiff was informed by defendant and believed the fact to be that the car [346] was a new car direct from the factory instead of being a car previously sold to and used by another, nevertheless ^such a finding affords no proper support for the judgment below. Although we may take judicial notice that in such a sale a new rather than a used car may be presumed, prima facie at least, as intended to be the subject matter of the sale (Fox v. Boldt, 172 Wis. 333, 344, 178 N. W. 467, 179 N. W. 1), and of the fact that a second-hand or used car has forthwith a lesser sale price in the market than a new car even though the former be substantially in the same or as good mechanical condition and as fit for actual service and use as a new car fresh from the factory, yet there was no proof offered in this case as to the amount of depreciation in such market value. Other than such depreciation of sale price no actual damage was shown to have been caused to plaintiff by this transaction. The record discloses, as grounds requiring a reversal of the judgment, the following: First, there was an unreasonable length of time elapsing between the sale and the tender back; the plaintiff knowing some of the facts putting him on inquiry and having ample opportunity, by the exercise of reasonable diligence, to have learned more of the facts long prior to the time of the tender. We deem it unnecessary to discuss here the evidence in that regard. Second, there was no offer to restore the defendant to substantially the same position that it was in at the time of the sale. The automobile delivered by plaintiff to defendant as payment to the extent of $775 at the time of the sale had long since been sold by defendant, and plaintiff’s demand ignored consideration of the fact that such automobile so exchanged by him at the time was a second-hand car itself and valued at $775 for exchange purposes only. Third, a very substantial use had been made to plaintiff’s evident benefit of this car and a depreciation in its actual [347] value in the period elapsing between its purchase and its tender back to defendant. But no allowance was made by .plaintiff’s tender or in the judgment below for such bene/‘ficial use of the car to and by plaintiff or its depreciated value. There was therefore an absence of -any such reasonable and proper offer on the part of plaintiff to restore the par- ‘ ties as nearly and fairly as possible to the condition existing at" the time of the sale sufficient to warrant the application of ;the equitable remedy of rescission and the sweeping relief -granted below. For these reasons and upon such decisions as Weber v. Myhre, 191 Wis. 263, 210 N. W. 832; Stockhausen v. Oehler, 186 Wis. 277, 280, 201 N. W. 823; and Hall v. Bell, 143 Wis. 296, 300, 127 N. W. 967, plaintiff should be relegated to a recovery for any actual damages shown to result from the fraud, if any, inducing the sale. The record is barren of evidence which would warrant us in here disposing of the case upon such theory of relief. The judgment as entered being without proper foundation must therefore be reversed. By the Court. — Judgment reversed,»-and cause remanded for further proceedings according to law.